To adjust the status of certain aliens with longstanding ties to the United States to that of an alien lawfully admitted to permanent residence, and for other purposes.

January 7, 2003

Mr. PASTOR (for himself and Mr. GUTIERREZ) introduced the following bill; which was referred to the Committee on the Judiciary

To adjust the status of certain aliens with longstanding ties to the United States to that of an alien lawfully admitted to permanent residence, 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 `Immigration Adjustment Act of 2003'.

SEC. 2. REFERENCES.

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Immigration and Nationality Act.

TITLE I--ADJUSTMENT OF STATUS OF CERTAIN UNDOCUMENTED ALIENS

SEC. 101. ADJUSTMENT OF STATUS OF CERTAIN ENTRANTS BEFORE JANUARY 1, 2001, TO THAT OF PERSON ADMITTED FOR LAWFUL RESIDENCE.

(a) IN GENERAL- Chapter 4 of title II is amended by inserting after section 245A the following:

`ADJUSTMENT OF STATUS OF CERTAIN ENTRANTS BEFORE JANUARY 1, 2001, TO THAT OF PERSON ADMITTED FOR LAWFUL RESIDENCE

`SEC. 245B. (a) RESIDENT STATUS-

`(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 requirements of this subsection.

`(2) TIMELY APPLICATION-

`(A) DURING APPLICATION PERIOD- Except as provided in subparagraph (B), the alien must apply for such adjustment during the 18-month period beginning on a date (not later than 360 days after date of enactment) designated by the Attorney General.

`(B) APPLICATION WITHIN 30 DAYS OF NOTICE TO APPEAR- An alien who, at any time during the first 17 months of the 18-month period described in subparagraph (A), is the subject of a notice to appear issued under section 239, must make application under subsection (b) not later than the end of the 30-day period beginning either on the first day of such 18-month period or on the date of the issuance of such notice, whichever day is later.

`(C) INFORMATION INCLUDED IN APPLICATION- Each application under subsection (c) 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).

`(3) CONTINUOUS RESIDENCE-

`(A) IN GENERAL-

`(i) CONTINUOUS RESIDENCE- The alien must establish that the alien entered the United States before January 1, 2001, and has resided continuously in the United States since such date and through the date the application is filed under this subsection.

`(ii) 5 years- The alien must establish continuous residence in the United States immediately preceding the 5-year period ending on the date on which the alien becomes eligible for adjustment of status under this subsection.

`(iii) TREATMENT OF CERTAIN ABSENCES- An alien shall not be considered to have lost continuous residence by reason of an absence from the United States permitted under subsection (b)(9).

`(B) 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.

`(4) CONTINUOUS PHYSICAL PRESENCE SINCE DATE OF ENACTMENT-

`(A) IN GENERAL- The alien must establish that the alien has been continuously physically 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 continuous physical presence in the United States for purposes of subparagraph (A) by virtue of an absence, or absences, from the United States for any periods in the aggregate not exceeding 180 days.

`(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.

`(5) 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 (c)(2); and

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

`(6) BASIC CITIZENSHIP SKILLS-

`(A) IN GENERAL- The alien must demonstrate that he 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) DISABILITIES- Subparagraph (A) shall not apply to a person who is unable because of physical or developmental disability or mental impairment to comply with such subparagraph.

`(ii) AGE- The Attorney General may, in the Attorney General's discretion, waive all or part of the requirements of subparagraph (A) in the case of an alien who is 65 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) APPLICATIONS FOR ADJUSTMENT OF STATUS-

`(1) CONDITIONS FOR ACCEPTANCE OF APPLICATION- An application shall be accepted under this subsection upon a determination that the applicant is prima facie eligible for adjustment of status under subsection (a), which determination shall not be made before, at a minimum, the identity of the applicant has been checked against all appropriate electronic databases maintained by the Attorney General and by the Secretary of State and appropriate foreign entities or international law enforcement databases to determine any grounds on which the alien may be inadmissible to the United States that may not be waived under subsection (c)(2).

`(2) TO WHOM MAY BE MADE-

`(A) IN GENERAL- The Attorney General shall provide that applications for adjustment of status under subsection (a) may be filed--

`(i) with the Attorney General, or

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

`(B) DEFINITION- As used in this section, the term `qualified designated entity' means an organization or person designated under paragraph (3).

`(3) 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.

`(4) 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 (2)(A)(ii) 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.

`(5) 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.

`(6) 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 (7);

`(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 or law 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.

`(7) 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 five years, or both.

`(8) APPLICATION FEES-

`(A) FEE SCHEDULE- The Attorney General shall provide for a schedule of fees to be charged for the filing of applications for adjustment under this section. Such fees shall not exceed the Attorney General's costs in adjudicating the applications.

`(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 subsection.

`(9) AUTHORIZED TRAVEL AND EMPLOYMENT- During the period after an alien has submitted an application under this subsection and before the Attorney General has rendered a decision to accept or reject such application, and during the period after the acceptance of an alien's application under this subsection and before the Attorney General has rendered a final decision granting or denying such application, the Attorney General--

`(A) shall not remove the alien from the United States;

`(B) shall, in accordance with regulations, permit the alien to return to the United States after such brief and casual trips abroad as reflect an intention on the part of the alien to adjust to lawful permanent resident status under subsection (a) and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness or death of a close relative or other family need; and

`(C) shall grant the alien authorization to engage in employment in the United States and provide to that alien an `employment authorized' endorsement or other appropriate work permit for 12 months, renewable at 6-month intervals, until a final ruling on the application is made.

`(c) 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 subsection (a) or (g).

`(2) TREATMENT OF GROUNDS FOR INADMISSIBILITY-

`(A) INAPPLICABLE GROUNDS FOR INADMISSIBILITY- In the determination of an alien's admissibility under subsection (a), the provisions of paragraphs (4), (5), (6)(A),

(7)(A), and (9)(B) of section 212(a) shall not apply.

`(B) WAIVER OF GROUNDS FOR INADMISSIBILITY-

`(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).

`(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.

`(d) TEMPORARY STAY OF DEPORTATION AND WORK AUTHORIZATION BEFORE APPLICATION PERIOD- The Attorney General may provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(2)(A) and who can establish a prima facie case of eligibility to have his status adjusted under subsection (a) or (g) (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 30 days of the application period to complete the filing of an application for adjustment, the alien--

`(1) may not be removed from the United States; and

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

`(e) ADMINISTRATIVE AND JUDICIAL REVIEW-

`(1) ADMINISTRATIVE AND JUDICIAL REVIEW- There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under subsection (a) or (g) except in accordance with this subsection.

`(2) NO REVIEW FOR LATE FILINGS- No denial of adjustment of status under subsection (a) or (g) based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government.

`(3) 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.

`(4) JUDICIAL REVIEW-

`(A) LIMITATION TO REVIEW OF DEPORTATION- There shall be judicial review of such a denial only in the judicial review of an order of removal under section 242.

`(B) STANDARD FOR JUDICIAL REVIEW- Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such 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.

`(C) JURISDICTION OF COURTS- Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(2) attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.

`(f) IMPLEMENTATION OF SECTION-

`(1) REGULATIONS- The Attorney General, after consultation with the Committees on the Judiciary of the House of Representatives and of the Senate, shall prescribe--

`(A) regulations establishing a definition of the term `continuous residence', as used in this section, and the evidence needed to establish that an alien has resided continuously in the United States for purposes of this section; and

`(B) such other regulations as may be necessary to carry out this section.

`(2) CONSIDERATIONS- In prescribing regulations described in paragraph (1)(A)--

`(A) PERIODS OF CONTINUOUS RESIDENCE- The Attorney General shall specify individual periods, and aggregate periods, of absence from the United States which will be considered to break a period of continuous residence in the United States and shall take into

account absences due merely to brief and casual trips abroad.

`(B) ABSENCES CAUSED BY REMOVAL OR ADVANCED PAROLE- The Attorney General shall provide that--

`(i) an alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of removal or deportation; and

`(ii) any period of time during which an alien is outside the United States pursuant to the advance parole procedures of the Service shall not be considered as part of the period of time during which an alien is outside the United States for purposes of this section.

`(C) WAIVERS OF CERTAIN ABSENCES- The Attorney General shall provide for a waiver, in the discretion of the Attorney General, of the periods specified under subparagraph (A) in the case of an absence from the United States due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

`(D) USE OF CERTAIN DOCUMENTATION- The Attorney General shall require that--

`(i) continuous residence and physical presence in the United States must be established through documents, together with independent corroboration of the information contained in such documents; and

`(ii) the documents provided under clause (i) be employment-related if employment-related documents with respect to the alien are available to the applicant.

`(3) INTERIM FINAL REGULATIONS- Regulations prescribed under this section may be prescribed to take effect on an interim final basis if the Attorney General determines that this is necessary in order to implement this section in a timely manner.

`(g) ADJUSTMENT OF STATUS FOR SPOUSES AND CHILDREN-

`(1) IN GENERAL- The status of an alien shall be adjusted by the Attorney General to that of an alien lawfully admitted for permanent residence concurrently with the adjustment of the principal alien, if--

`(A) the alien is the spouse or child of an alien whose status is adjusted to that of an alien lawfully admitted for permanent residence under subsection (a);

`(B) the alien applies for such adjustment and is physically present in the United States on the date the application is filed;

`(C) the alien is otherwise admissible to the United States for permanent residence, except in determining such admissibility the grounds for inadmissibility specified in paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) shall not apply; and

`(D) the alien applies for such adjustment before the expiration of the application period specified in subsection (a)(2)(A).

`(2) DETERMINATION OF WHETHER APPLICANT IS A CHILD- For purposes of paragraph (1)(A), a determination of whether an alien is a child shall be made using the age of the alien on the date on which the alien's application under this subsection is filed.

`(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.'.

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

`Sec. 245B. Adjustment of status of certain entrants before January 1, 2001, to that of person admitted for lawful residence.'.

TITLE II--REGISTRY DATE CHANGE

SEC. 201. CHANGE OF ENTRY DATE INTO THE UNITED STATES FOR PURPOSES OF A RECORD OF ADMISSION FOR PERMANENT RESIDENCE FOR CERTAIN ALIENS.

(a) IN GENERAL- Section 249 (8 U.S.C. 1259) is amended--

(1) in the section heading, by striking `JANUARY 1, 1972' and inserting `JANUARY 1, 2001'; and

(2) in subsection (a), by striking `January 1, 1972;' and inserting `January 1, 2001;'.

(b) CLERICAL AMENDMENT- The table of contents is amended in the item relating to section 249 by striking `January 1, 1972' and inserting `January 1, 2001'.

(c) EFFECTIVE DATE- The amendments made by subsections (a) and (b) shall take effect on January 1, 2007.

TITLE III--MISCELLANEOUS

SEC. 301. REGULATIONS.

The Attorney General shall promulgate regulations to implement this Act not more than 90 days after the date of the enactment of this Act.

SEC. 302. AUTHORIZATION OF APPROPRIATIONS.

(a) IN GENERAL- There are authorized to be appropriated such sums as may be necessary to carry out this Act.

(b) AVAILABILITY OF FUNDS- Amounts appropriated pursuant to subsection (a) are authorized to remain available until expended.

SEC. 303. EFFECTIVE DATE.

Except as otherwise provided in this Act, the amendments made by this Act shall take effect on the date of the enactment of this Act.

END