< Back to S. 3639 (112th Congress, 2011–2013)

Text of the ACHIEVE Act

This bill was introduced on November 27, 2012, in a previous session of Congress, but was not enacted. The text of the bill below is as of Nov 27, 2012 (Introduced).

Source: GPO

II

112th CONGRESS

2d Session

S. 3639

IN THE SENATE OF THE UNITED STATES

November 27, 2012

(for herself, Mr. Kyl, and Mr. McCain) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to provide secure borders and to give long-term resident youth the ability to contribute to the safety and economic growth of the United States and for other purposes.

1.

Short title

This Act may be cited as the Assisting Children and Helping them Improve their Educational Value for Employment Act or the ACHIEVE Act.

2.

Conditional nonimmigrant status for certain aliens who entered the United States as children

Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended—

(1)

in subparagraph (T)(iii), by striking the period at the end and inserting a semicolon;

(2)

in subparagraph (U)(iii), by striking or at the end;

(3)

in subparagraph (V)(ii)(II), by striking the period at the end and inserting a semicolon; and

(4)

by adding at the end the following:

(W)
(i)

an alien whose nonimmigrant status in the United States is on a conditional basis pursuant to this clause and section 214(s) and the alien has shown with clear and convincing evidence that the alien—

(I)

was younger than 14 years of age on the date on which the alien initially entered the United States;

(II)

has maintained a continuous physical presence in the United States during the 5-year period immediately preceding the date of the enactment of the ACHIEVE Act;

(III)

initially entered the United States on a date that was prior to the date that was 5 years prior to the date of the enactment of the ACHIEVE Act;

(IV)

has been a person of good moral character since the date on which the alien initially entered the United States;

(V)

is not inadmissible under paragraph (1), (2), (3), (4), (5), (6)(B), (6)(C), (6)(E), (6)(F), (6)(G), (8), (9)(A), or (10) of section 212(a);

(VI)

is not deportable under paragraph (1)(E), (1)(G), (2), (3)(B), (3)(C), (3)(D), (4), (5), or (6) of section 237(a);

(VII)

has not been convicted of a felony, any offense that may be described as a crime of moral turpitude under this Act, or a misdemeanor under Federal or State law, punishable by imprisonment for more than 30 days, unless such misdemeanor is the result of a traffic violation that does not involve the applicant being under the influence of alcohol or any substance listed in Schedule I of the Controlled Substances Act (Public Law 91–513);

(VIII)

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;

(IX)

has earned a high school diploma from a high school physically located in the United States or obtained a general education development certificate in the United States and—

(aa)

is enlisted, or is intending to enlist (as documented in accordance with section 214(s)(3)(I)), in one of the branches of the Armed Forces (which has the meaning given the term armed forces in section 101(a) of title 10, United States Code);

(bb)

is admitted as a student to an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965), which is physically located in the United States;

(cc)

has earned a bachelor’s degree or an associate’s degree from an institution of higher education; or

(dd)

has served for a period of at least 4 years in one of the branches of the Armed Forces and was not dishonorably discharged;

(X)

has never been under a final administrative or judicial order of exclusion, deportation, or removal, unless the alien—

(aa)

remained in the United States under the color of law after the order was issued; or

(bb)

received the order before reaching 16 years of age; and

(XI)
(aa)

was younger than 29 years of age on the date of the enactment of the ACHIEVE Act; or

(bb)

in the case of an alien who had earned a bachelor’s degree or an associate’s degree prior to such date of enactment from an institution of higher education, was younger than 32 years of age on such date of enactment;

(ii)

an alien whose nonimmigrant status in the United States is on a conditional basis pursuant to this clause and section 214(s) and has shown with clear and convincing evidence that the alien—

(I)

was a conditional nonimmigrant described in clause (i) for a period of not less than 6 years and during such period—

(aa)

has not violated any of the requirements of clause (i);

(bb)

has not become a public charge; and

(cc)

has not abandoned the alien's residence in the United States;

(II)

before or during such period of conditional nonimmigrant status—

(aa)

obtained a bachelor’s degree from an institution of higher education and, if such degree was obtained before the alien was granted such status, was employed in the United States for a period of not less than 4 years;

(bb)

served at least 4 years in one of the branches of the Armed Forces and, if discharged from the military, was not discharged dishonorably; or

(cc)

obtained an associate’s degree from an institution of higher education, or a substantially equivalent degree from a technical or vocational school that is accredited by the Accrediting Commission of Career Schools and Colleges, and was employed in the United States for a period of not less than 30 months; and

(III)
(aa)

has an offer of employment in the United States;

(bb)

is employed in the United States; or

(cc)

is pursuing a graduate degree at an institution of higher education; or

(iii)

an alien who has shown with clear and convincing evidence that the alien—

(I)

was a conditional nonimmigrant under clause (i) for a period of not less than 6 years and had conditional nonimmigrant status under clause (ii) for a period of not less than 4 years and during both such periods—

(aa)

was in compliance with all requirements for such status during such periods;

(bb)

did not become a public charge; and

(cc)

did not abandon the alien's residence in the United States; and

(II)

while in such status pursuant to clause (ii)—

(aa)

was employed in the United States for a period of 36 months; or

(bb)

was enrolled in a graduate degree program at an institution of higher education, or obtained a graduate degree from an institution of higher education.

.

3.

Admission and cancellation of removal of W conditional nonimmigrants

(a)

Process for cancellation of removal and adjustment to W–1 conditional nonimmigrant status

Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following:

(s)

W conditional nonimmigrant status

(1)

Definitions

In this subsection:

(A)

Armed forces

The term Armed Forces has the meaning given the term armed forces in section 101(a) of title 10, United States Code.

(B)

Institution of higher education

The term institution of higher education has the meaning given such term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1002), except that the term does not include an institution of higher education outside the United States.

(C)

Secretary

Except as otherwise specifically provided, the term Secretary means the Secretary of Homeland Security.

(D)

W–1 conditional nonimmigrant

The term W–1 conditional nonimmigrant means an alien granted nonimmigrant status pursuant to clause (i) of section 101(a)(15)(W) and in compliance with this subsection.

(E)

W–2 conditional nonimmigrant

The term W–2 conditional nonimmigrant means an alien granted nonimmigrant status pursuant to clause (ii) of section 101(a)(15)(W) and in compliance with this subsection.

(F)

W–3 nonimmigrant

The term W–3 nonimmigrant means an alien granted nonimmigrant status pursuant to clause (iii) of section 101(a)(15)(W) and in compliance with this subsection.

(2)

General conditions

(A)

In general

An alien applying for or granted W–1 conditional nonimmigrant status, W–2 conditional nonimmigrant status, or W–3 nonimmigrant status shall be subject to the following general conditions:

(i)

Status benefit solely for alien

Any nonimmigrant status described in section 101(a)(15)(W) is solely for the benefit of the alien on whom it is conferred. No dependents, lineal as­cen­dants, or collateral ascendants of the alien on whom such status is conferred may obtain any immigration benefit as a result of such conferral of status while the principal alien remains in any such nonimmigrant status.

(ii)

Prohibition on status benefit for culpable family member

Any relative of an alien granted nonimmigrant status described in section 101(a)(15)(W) who assisted the alien’s unlawful entry or unlawful presence into the United States is prohibited from benefitting from such alien’s status while the principal alien remains in such nonimmigrant status.

(iii)

Status during pendency of application

An alien shall be deemed to be in the conditional nonimmigrant or nonimmigrant status applied for during the period in which the alien’s application for such status is pending. Time spent during the pendency of the application process shall not count against the alien for the purpose of calculating the duration of the alien’s valid status under any of the categories set forth in section 101(a)(15)(W). While the alien's application for such status is pending, the alien may not receive any of the benefits described in clauses (iv) and (v).

(iv)

Employment

An alien granted such status shall be authorized to be employed in the United States incident to such status. If the alien is a student described in clause (i) or (ii) of section 101(a)(15)(W), the alien’s employment shall be authorized by the Secretary if the alien provides proof to the Secretary that the alien is enrolled in at least 6 credit hours at an institution of higher learning (as defined under section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(v)

Travel

An alien granted such status may travel outside the United States and may be admitted (if otherwise admissible) upon return to the United States if—

(I)

the alien is the bearer of a valid, unexpired nonimmigrant visa document referred to in clause (vii); and

(II)

the alien’s absence from the United States is not for any period longer than 90 days in duration.

(vi)

Evidence of status

The Secretary of State shall issue to each alien granted any such status a highly tamper-resistant document that—

(I)

provides evidence of the alien’s valid nonimmigrant visa status, the alien’s lawful presence in the United States, and the alien’s authorization for employment in the United States;

(II)

contains the alien’s biographic and biometric information; and

(III)

contains a unique watermark and other uniquely designed physical security features, which are to be determined by the Secretary, to prevent the tampering, counterfeiting, and unauthorized duplication of such document.

(vii)

No foreign residence

An alien granted such status is not required to have a foreign residence which the alien has no intention of abandoning.

(viii)

Prohibition on benefits

An alien granted such status—

(I)

is not eligible for any Federal means-tested public welfare benefits;

(II)

is not eligible for any Federal student loans, Federal work-study programs, or any other services or benefits provided under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.); and

(III)

is not considered to be lawfully present in the United States for purposes of—

(aa)

section 36B of the Internal Revenue Code of 1986; or

(bb)

section 1402 of the Patient Protection and Affordable Care Act (42 U.S.C. 18071).

(ix)

Change of status

(I)

W–1 conditional nonimmigrant

Notwithstanding any other provision of law, an alien may not change or adjust from W–1 conditional nonimmigrant status to any other legal status except for W–2 conditional nonimmigrant status.

(II)

W–2 conditional nonimmigrant

Notwithstanding any other provision of law, an alien may not change or adjust from W–2 conditional nonimmigrant status to any other legal status except for W–3 nonimmigrant status.

(x)

Reporting requirement

Notwithstanding any other provision of law, each alien granted W–1 conditional nonimmigrant status or W–2 conditional nonimmigrant status shall submit, every 6 months, a report to the Secretary that contains the alien's name, the alien's current address, and sufficient documentary evidence to demonstrate that the alien is in compliance with the requirements of such status.

(B)

Use of surcharge

Notwithstanding any other provision of law, including section 286, any surcharge collected under this subsection shall be deposited as offsetting receipts in the general fund of the Treasury and shall not be available for obligation or expenditure.

(C)

Exclusive jurisdiction

(i)

In general

Except as provided under clause (ii), the Secretary shall have exclusive jurisdiction to determine eligibility for relief under section 101(a)(15)(W).

(ii)

Exception

If an alien has been placed into deportation, exclusion, or removal proceedings before or after filing an initial application for cancellation of removal and adjustment to conditional nonimmigrant status or adjustment of status under the ACHIEVE Act, the Attorney General shall have exclusive jurisdiction and shall assume all the powers and duties of the Secretary until proceedings are terminated, or a final order of deportation, exclusion, or removal is entered.

(iii)

Resumption of jurisdiction

Upon the termination of proceedings or if a final order of deportation, exclusion, or removal is initiated, the Secretary shall resume all powers and duties delegated to the Secretary with respect to such alien under this Act, the ACHIEVE Act, and other relevant Federal law.

(3)

W–1 conditional nonimmigrants

(A)

Eligibility

An alien is eligible for W–1 conditional nonimmigrant status if the alien meets the requirements under section 101(a)(15)(W)(i) and this paragraph.

(B)

Cancellation of removal

The Secretary shall cancel the removal of an alien seeking W–1 conditional nonimmigrant status and adjust the status of such alien to that of a W–1 conditional nonimmigrant if the alien submits to the Secretary a timely application for such status that includes clear and convincing evidence that the alien is eligible for such status.

(C)

Submission of application

An application for W–1 conditional nonimmigrant status for an alien is timely if such application is submitted to the Secretary not later than—

(i)

the date that is 1 year after the date of the enactment of this subsection; or

(ii)

the date that is 1 year after the date on which the alien earned a high school diploma or obtained a general education development certificate in the United States if the alien is younger than 22 years of age on the date of the enactment of this subsection.

(D)

Surcharge

Each application for W–1 conditional nonimmigrant status shall be accompanied by a surcharge in the amount of $525, which shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services.

(E)

Other requirements

The Secretary may not cancel the removal of an alien under subparagraph (B) or grant W–1 conditional nonimmigrant status to the alien unless the following conditions are met:

(i)

Biometric data

The alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric or biographic data because of a physical impairment.

(ii)

Background checks

(I)

Requirement for background checks

The Secretary utilizes the biometric, biographic, and other data submitted by the alien, as requested by the Secretary—

(aa)

to conduct security and law enforcement background checks of the alien; and

(bb)

to determine if there is any criminal, national security, or other factor that would render the alien ineligible for such status.

(II)

Timing of checks

The security and law enforcement background checks required under this clause are completed to the satisfaction of the Secretary.

(iii)

Medical examination

The alien undergoes a medical observation and examination in accordance with the policies and procedures established by the Secretary, with the concurrence of the Secretary of Health and Human Services.

(iv)

Military selective service

The alien has registered under the Military Selective Service Act (50 U.S.C. App. 451 et seq.), if the alien is subject to such registration under that Act.

(v)

Citizenship requirement

Except as provided in subclause (II), the alien demonstrates that the alien satisfies the requirements of section 312(a).

(vi)

Continuous presence and initial entry

The alien has maintained continuous physical presence in the United States for the 5-year period immediately preceding the date of the enactment of the ACHIEVE Act, and the alien’s initial date of entry was on or before the date that is 5 years before the date of the enactment of the ACHIEVE Act, which shall be determined as follows:

(I)

Burden of evidence

The alien shall have the burden to establish the alien’s continuous presence in the United States by clear and convincing evidence.

(II)

Acceptable forms of evidence

The alien may submit types of independently verifiable documents as evidence of continuous physical presence in the United States, entry into the United States, or both. A single document listed under this subclause shall be insufficient to determine whether the applicant meets the burden described in subclause (I). The alien shall submit at least 2 forms of the documents listed under this subclause with the applicant’s application, which, in the discretion of the Secretary, may still be insufficient to meet the burden described in subclause (I). The alien may meet such burden by submitting two or more of the following documents:

(aa)

An order of removal, exclusion, or deportation issued by an Immigration Judge or the Board of Immigration Appeals.

(bb)

An I–94 arrival-departure document.

(cc)

A valid, expired or unexpired passport reflecting the date of entry into the United States.

(dd)

Certified school records from a recognized United States Primary or Secondary School for kindergarten through grade 12.

(ee)

Certified medical records from a recognized hospital or health care provider in the United States.

(ff)

A sworn affidavit from a citizen of the United States attesting to the alien’s good moral character and the length and intimacy of the relationship between the alien and the citizen. The citizen signing the affidavit is subject to the penalty of perjury and if found guilty is subject to a maximum of $10,000 fine, 5 years in prison, or both.

(III)

Additional forms of evidence

The Secretary may—

(aa)

designate additional documents that may be submitted as evidence of physical presence or initial entry into the United States according to the requirements of 101(a)(15)(W)(i); and

(bb)

set such terms and conditions on the use of such documents as is necessary to verify and confirm the identity of the applicant and the legitimacy of the document to prevent fraudulent admissions.

(vii)

Stay of removal

(I)

In general

The Secretary may not remove any alien who—

(aa)

has a pending application for W–1 nonimmigrant status; and

(bb)

establishes to the Secretary, by a preponderance of the evidence, that the alien is eligible for such status.

(II)

Evidentiary standard

An alien applying for W–1 nonimmigrant status has met the requirement for a stay of removal if his or her application for such status meets at least 2 of the 3 following evidentiary requirements:

(aa)

Certified school records described in clause (vi)(II)(dd).

(bb)

Certified medical records described in clause (vi)(II)(ee).

(cc)

A sworn affidavit described in clause (vi)(II)(ff).

(F)

Calculation of continuous presence under W–1 conditional nonimmigrant status

(i)

Termination of continuous period

For purposes of this section, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal under subparagraph (B) shall not terminate when the alien is served a notice to appear under section 239(a).

(ii)

Treatment of certain breaks in presence under W–1 status

(I)

In general

Subject to subclauses (II) and (III), an alien shall be considered to have failed to maintain continuous physical presence and abandoned the alien's residence in the United States if the alien has departed from the United States for any period in excess of 90 days or for any aggregated period spent outside of the United States in excess of 180 days.

(II)

Extensions for exceptional circumstances

The Secretary may extend the time periods described in subclause (I) if the alien demonstrates that the failure to timely return to the United States was due to exceptional circumstances. The exceptional circumstances determined sufficient to justify an extension should be no less compelling than serious illness of the alien, or death or serious illness of a parent, grandparent, sibling, or child. Such an extension may not exceed 60 days.

(III)

Exception for military service

An alien who is absent from the United States due to active service in the Armed Forces has not abandoned the alien's residence in the United States during the period of such service and any such absence may not be counted in the determination of aggregate time spent outside of the United States for the purposes of determining the abandonment of the alien’s residence.

(G)

Period of status

(i)

In general

W–1 conditional nonimmigrant status shall be valid for a period of 6 years, subject to termination under subparagraph (H).

(ii)

Prohibition on extension

The Secretary may not renew or extend the 6-year period referred to in clause (i) for any alien.

(H)

Termination of status

(i)

In general

The Secretary shall terminate the W–1 conditional nonimmigrant status of any alien if the Secretary determines that the alien—

(I)

ceases to meet the requirements of this section or of 101(a)(15)(W)(i);

(II)

has become a public charge; or

(III)

has received a dishonorable discharge from the Armed Forces.

(ii)

Return to previous immigration status

Any alien whose W–1 conditional nonimmigrant status is terminated under clause (i)—

(I)

shall return to the immigration status the alien had immediately before receiving W–1 conditional nonimmigrant status; and

(II)

shall be subject to immediate removal.

(I)

Intending to enlist

An alien does not meet the intending to enlist requirement set forth in section 101(a)(15)(W)(i)(IX)(aa) unless the alien submits, to the Secretary of Homeland Security, a document obtained from a branch of the Armed Forces that contains—

(i)

the alien’s name and current address;

(ii)

an attestation of the alien’s intent to enlist; and

(iii)

an attestation that the alien meets the applicable moral, medical, and mental standards for enlistment.

.

(b)

Regulations

(1)

Initial publication

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall publish regulations to carry out paragraphs (2) and (3) of subsection (s) of section 214 of the Immigration and Nationality Act (8 U.S.C. 1184), as added by subsection (a).

(2)

Interim regulations

Notwithstanding section 553 of title 5, United States Code, the regulations required by paragraph (1) shall be effective, on an interim basis, immediately upon publication but may be subject to change and revision after public notice and opportunity for a period of public comment.

(3)

Final regulations

Within a reasonable time after publication of the interim regulations in accordance with this subsection, the Secretary of Homeland Security shall publish final regulations implementing this section.

4.

W–2 Conditional nonimmigrant status

Section 214(s) of the Immigration and Nationality Act (8 U.S.C. 1184), as added by section 3, is amended by adding at the end the following:

(4)

W–2 conditional nonimmigrant status

(A)

Eligibility

(i)

In general

An alien is eligible for W–2 conditional nonimmigrant status if the alien meets the requirements of clause (ii) of section 101(a)(15)(W) and this paragraph.

(ii)

Prohibition on applications from other nonimmigrants

Only an alien granted W–1 conditional nonimmigrant status is eligible to apply for W–2 conditional nonimmigrants status.

(B)

Change of status

The Secretary shall change the status of an alien granted W–1 conditional nonimmigrant status to that of a W–2 conditional nonimmigrant if the alien submits to the Secretary a timely application for such status that includes clear and convincing evidence that the alien is eligible for such status.

(C)

Submission of application

An application for W–2 conditional nonimmigrant status for an alien is timely if such application is submitted to the Secretary—

(i)

not earlier than 1 year before the applicant’s valid W–1 status expires; and

(ii)

not later than the date on which the applicant’s valid W–1 status expires.

(D)

Surcharge

Each application for W–2 conditional nonimmigrant status shall be accompanied by a surcharge in the amount of $750, which shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services.

(E)

Other requirements

The Secretary may not cancel the removal of an alien under subparagraph (B) or grant W–2 conditional nonimmigrant status to the alien unless the following conditions are met:

(i)

W–1 conditional nonimmigrant status

Except as provided in clause (ii), the alien was granted W–1 conditional nonimmigrant status for a period of not less than 6 years and during such period the alien—

(I)

maintained compliance with section 101(a)(15)(W)(i) and the applicable requirements of this subsection, including the reporting requirement set out in paragraph (2); and

(II)

demonstrated good moral character.

(ii)

Continuous presence

The alien has maintained continuous physical presence in the United States during such period, as calculated under subparagraph (F).

(iii)

Disability exception

(I)

In general

The Secretary of Homeland Security may grant a hardship waiver to any alien who proves, by clear and convincing evidence, that—

(aa)

the alien became afflicted with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) during the time in which the alien was granted status under section 101(a)(15)(W)(i); and

(bb)

such disability is directly attributable to the alien’s inability to meet the requirements under clause (i)(I).

(II)

Notice

The alien may not be granted a hardship waiver under this clause unless the alien provides notice of the alien’s disability to United States Citizenship and Immigration Services not later than 120 days after the date on which the alien became afflicted with a disability.

(F)

Calculation of continuous presence

An alien shall be considered to have failed to maintain continuous physical presence in the United States while in W–2 conditional nonimmigrant status if the alien has departed from the United States for any period in excess of 90 days or for any aggregated period spent outside of the United States in excess of 120 days, calculated as described in paragraph (3)(F).

(G)

Period of status

W–2 conditional nonimmigrant status shall be valid for a period of 4 years, subject to termination under subparagraph (H).

(H)

Termination of status

(i)

In general

The Secretary shall terminate the W–2 conditional nonimmigrant status of any alien if the Secretary determines that the alien—

(I)

ceases to meet the requirements of this section or of 101(a)(15)(W)(ii);

(II)

has become a public charge; or

(III)

has received a dishonorable discharge from the Armed Forces.

(ii)

Return to undocumented status

Any alien whose W–2 conditional nonimmigrant status is terminated under clause (i) shall not have any lawful immigration status in the United States and shall be subject to immediate removal.

(I)

Special rule for aliens discharged from the military

(i)

Honorable discharge

An alien who has served 4 years in a branch of the Armed Forces and is honorably discharged from such service—

(I)

may not be required to apply for W–2 conditional nonimmigrant status or W–3 nonimmigrant status; and

(II)

during the 1-year period beginning on the date of such honorable discharge, may apply for lawful permanent resident status under a special process to be determined by the Secretary in regulations.

(ii)

General discharge

(I)

Requirement for review

An alien who is discharged from service in a branch of the Armed Services pursuant to a general discharge, which includes any discharge that is not an honorable discharge or a dishonorable discharge, may not remain in W–1 conditional nonimmigrant status or receive W–2 conditional nonimmigrant status or W–3 nonimmigrant status until the Secretary, in consultation with the Secretary of Defense, reviews the facts and circumstances of such discharge.

(II)

Disposition

Based on the outcome of a review conducted under subclause (I), the Secretary shall, with respect to an alien, take one of the following actions:

(aa)

Terminate the alien’s status under subparagraph (W) of section 101(a)(15).

(bb)

Permit the alien to remain in status under such subparagraph and continue to apply for the next appropriate subsequent status under such subparagraph, pursuant to the procedures set out in this subsection.

.

5.

W–3 nonimmigrant status

(a)

In general

Section 214(s) of the Immigration and Nationality Act (8 U.S.C. 1184), as added by section 3 and amended by section 4, is further amended by adding at the end the following:

(5)

W–3 nonimmigrant status

(A)

Eligibility

(i)

In general

An alien is eligible for W–3 nonimmigrant status if the alien meets the requirements of clause (iii) of section 101(a)(15)(W) and this paragraph.

(ii)

Prohibition on applications from other nonimmigrants

Only an alien granted W–2 conditional nonimmigrant status is eligible to apply for W–3 nonimmigrant status.

(B)

Change of status

The Secretary shall change the status of such alien to that of a W–3 nonimmigrant if the alien submits to the Secretary a timely application for such status that includes clear and convincing evidence that the alien is eligible for such status.

(C)

Submission of application

An application for W–3 nonimmigrant status for an alien is timely if such application is submitted to the Secretary during the 1-year period prior to the expiration of the alien’s W–2 conditional nonimmigrant status.

(D)

Surcharge

(i)

Initial application

Each application for W–3 nonimmigrant status shall be accompanied by a surcharge in the amount of $2,000, which shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services.

(ii)

Renewals

Any application for renewal of W–3 nonimmigrant status after the initial grant of such status shall be accompanied by a $525 surcharge.

(E)

Other requirements

The Secretary may not cancel the removal of an alien under subparagraph (B) or grant W–3 nonimmigrant status to the alien unless the following conditions are met:

(i)

W–2 conditional nonimmigrant status

The alien was granted W–2 conditional nonimmigrant status for a period of not less than 4 years and during such period the alien—

(I)

maintained compliance with section 101(a)(15)(W)(ii) and the applicable requirements of this subsection, including the reporting requirement set out in paragraph (2); and

(II)

demonstrated good moral character.

(ii)

Disability exception

(I)

In general

The Secretary of Homeland Security may grant a hardship waiver to any alien who proves, by clear and convincing evidence, that—

(aa)

the alien became afflicted with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) during the time in which the alien was granted status under clause (i) or (ii) of section 101(a)(15)(W); and

(bb)

such disability is directly attributable to the alien’s inability to meet the requirements under clause (i)(I).

(II)

Notice

The alien may not be granted a hardship waiver under this clause unless the alien provides notice of the alien’s disability to United States Citizenship and Immigration Services not later than 120 days after the date on which the alien became afflicted with a disability.

(iii)

Updated biometric and biographic data

The alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric or biographic data because of a physical impairment.

(iv)

Updated background checks

The alien completes, to the satisfaction of the Secretary, new security and law enforcement background checks, as described in paragraph (3)(E)(ii).

(v)

Payment of Federal taxes

(I)

In general

The alien shall satisfy any applicable Federal tax liability due and owing on the date the alien applies for W–3 nonimmigrant status.

(II)

Applicable Federal tax liability

For purposes of subclause (I), the term applicable Federal tax liability means liability for Federal taxes imposed under the Internal Revenue Code of 1986, including any penalties and interest thereon.

(vi)

Continuous presence

The alien has maintained continuous physical presence in the United States during such period, as calculated under subparagraph (F).

(F)

Calculation of continuous presence

An alien shall be considered to have failed to maintain continuous physical presence in the United States while in W–1 or W–2 conditional nonimmigrant status if the alien has departed from the United States for any period in excess of 90 days or for any aggregated period spent outside of the United States in excess 180 days while present in the United States in W–1 conditional nonimmigrant status or for any aggregate period over 120 days while in W–2 conditional nonimmigrant status, calculated as described in paragraph (3)(F).

(G)

Period of status

(i)

In general

W–3 conditional nonimmigrant status shall be valid for an initial period of 5 years, subject to termination under subparagraph (H).

(ii)

Renewal

The Secretary may renew the 4-year period referred to in clause (i) for an unlimited number of 4-year periods.

(H)

Termination of status

(i)

In general

The Secretary shall terminate the W–3 nonimmigrant status of any alien if the Secretary determines that the alien—

(I)

ceases to meet the requirements of this section or of 101(a)(15)(W)(iii);

(II)

has become a public charge; or

(III)

has received a dishonorable discharge from the Armed Forces.

(ii)

Return to undocumented status

Any alien whose W–3 nonimmigrant status is terminated under clause (i) shall not have lawful immigration status in the United States.

(I)

Change of status

Nothing in this section or in any other provision of law, may prevent an alien granted W–3 nonimmigrant status from using any other lawful measures under this Act to change or adjust to another lawful nonimmigrant or immigrant status provided for in this Act.

.

(b)

Dual intent

Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by striking (L) or (V) of section 101(a)(15) and inserting, (L), (V), or (W).

6.

Penalties for false statements

(a)

Criminal penalty

Chapter 75 of title 18, United States Code, is amended—

(1)

by redesignating section 1547 as section 1548;

(2)

by inserting after section 1546 the following:

1547.

Fraud and misuse of the ACHIEVE Act

Any person who files an application for any benefit under the ACHIEVE Act, or an amendment made by such Act, and willfully and knowingly engages in fraud by falsifying, misrepresenting, concealing, or in any way failing to disclose a material fact or makes any false or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false or fraudulent statement or entry—

(1)

shall be fined under this title, imprisoned not more than 5 years, or both;

(2)

shall be placed into the immigration status that the person had before the person's initial application for relief under section 101(a)(15)(W) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(W)); and

(3)

shall be subject to immediate removal proceedings, in which the information that the person provided to the Secretary of Homeland Security during the person's application process may be used.

; and

(3)

in the chapter analysis, by striking the item relating to section 1547 and inserting the following:

1547. Fraud and misuse of the ACHIEVE Act.

1548. Alternative imprisonment maximum for certain offenses.

.

(b)

Definition of aggravated felony

Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended—

(1)

in subparagraph (T), by striking and at the end;

(2)

by redesignating subparagraph (U) as subparagraph (V); and

(3)

by inserting after subparagraph (T) the following:

(U)

an offense described in section 1547 of title 18, United States Code; and

.

7.

Confidentiality of applicant information

Section 214(s)(2) of the Immigration and Nationality Act, as added by section 3(a), is amended by adding at the end the following:

(D)

Prohibitions on information usage

Except as provided in subparagraphs (E) and (G), section 1547 of title 18, United States Code, and any provision of law that authorizes the use of applicant information collected under this subsection, no officer or employee of the United States may—

(i)

use the information furnished by an individual pursuant to an application for nonimmigrant status under section 101(a)(15)(W) to initiate removal proceedings against the applicant or the applicant's immediate family members;

(ii)

make any publication in which the information furnished by any particular individual pursuant to an application for nonimmigrant status under section 101(a)(15)(W) can be identified; or

(iii)

permit anyone other than an officer or employee of the United States Government or, in the case of an application filed with a designated entity, that designated entity, to examine such application.

(E)

Required disclosure

The Attorney General or the Secretary shall provide the information furnished under this subsection, and any other information derived from such furnished information, to—

(i)

a Federal, State, tribal, or local law enforcement agency, intelligence agency, national security agency, directorate of the Department of Homeland Security, court, or grand jury in connection with a criminal investigation or prosecution, a background check conducted pursuant to the Brady Handgun Violence Protection Act (Public Law 103–59; 107 Stat. 1536), or for homeland security or national security purposes, if such information is requested by such entity or consistent with an information sharing agreement or mechanism; or

(ii)

an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).

(F)

Penalty

Any person who knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000, imprisoned not more than 5 years, or both.

(G)

Obtaining information by other means

Notwithstanding subparagraph (D), nothing in this subsection may be construed to limit the authority of Federal, State, or local law enforcement authorities to obtain information that was included by an applicant in their application by any other lawful, independent means otherwise authorized under Federal, State, or local law.

.

8.

Military enlistment

Section 504(b)(1) of title 10, United States Code, is amended by adding at the end the following:

(D)

An alien who qualifies as a nonimmigrant (as defined in section 101(a)(15)(W) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(W))).

.