To amend the Immigration and Nationality Act in regard to Caribbean-born immigrants.

June 5, 2003

Mr. ENGEL introduced the following bill; which was referred to the Committee on the Judiciary

To amend the Immigration and Nationality Act in regard to Caribbean-born immigrants.

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 `Caribbean Amnesty and Relief Act'.

TITLE I--CLARIFICATION OF ELIGIBILITY FOR RELIEF FROM REMOVAL AND DEPORTATION FOR CERTAIN ALIENS

SEC. 101. ADJUSTMENT OF STATUS OF CERTAIN CARIBBEANS.

(a) ADJUSTMENT OF STATUS-

(1) IN GENERAL- Notwithstanding section 245(c) of the Immigration and Nationality Act, the status of any alien described in subsection (b) shall be adjusted by the Secretary of Homeland Security to that of an alien lawfully admitted for permanent residence, if the alien--

(A) applies for such adjustment before April 1, 2004; and

(B) is otherwise eligible to receive an immigrant visa and 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) and (7)(A) of section 212(a) of the Immigration and Nationality Act shall not apply.

(2) RELATIONSHIP OF APPLICATION TO CERTAIN ORDERS- An alien present in the United States who has been ordered excluded, deported, removed or ordered to depart voluntarily from the United States under any provision of the Immigration and Nationality Act may, notwithstanding such order, apply for adjustment of status under paragraph (1). Such an alien may not be required, as a condition of submitting or granting such application, to file a separate motion to reopen, reconsider, or vacate such an order. If the Secretary of Homeland Security grants the application, the Secretary shall cancel the order. If the Secretary renders a final administrative decision to deny the application, the order shall be effective and enforceable to the same extent as if the application had not been made.

(b) ALIENS ELIGIBLE FOR ADJUSTMENT OF STATUS-

(1) IN GENERAL- The benefits provided by subsection (a) shall apply to any alien who is a national of countries of the Caribbean and who has been physically present in the United States for a continuous period, beginning not later than September 30, 1996 and ending earlier than the date the application for adjustment under such subsection is filed, except an alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence, or absences, from the United States for any periods in the aggregate not exceeding 180 days.

(2) PROOF OF COMMENCEMENT OF CONTINUOUS PRESENCE- For purposes of establishing that the period of continuous physical presence referred to in paragraph (1) commenced not later than September 30, 1996, an alien--

(A) shall demonstrate that the alien, prior to September 30, 1996 performed service, or engaged in a trade or business, within the United States; or

(B) shall make such other demonstration of physical presence as the Secretary of Homeland Security may provide for by regulation.

(c) STAY OF REMOVAL; WORK AUTHORIZATION-

(1) IN GENERAL- The Secretary of Homeland Security shall provide by regulation for an alien subject to a final order of deportation or removal to seek a stay of such order based on the filing of an application under subsection (a).

(2) DURING CERTAIN PROCEEDINGS- Notwithstanding any provision of the Immigration and Nationality Act, the Secretary shall not order any alien to be removed from the United States, if the alien

is in exclusion, deportation, or removal proceedings under any provision of such an Act and has applied for adjustment of status under subsection (a), except where the Secretary has rendered a final administrative determination to deny the application.

(3) WORK AUTHORIZATION- The Secretary may authorize an alien who has applied for adjustment of status under subsection (a) to engage in employment in the United States during the pendency of such application and may provide the alien with an `employment authorization' endorsement or other appropriate document signifying authorization of employment, except that if such application is pending for a period exceeding 180 days, and has not been denied, the Secretary shall authorize such employment.

(d) ADJUSTMENT OF STATUS FOR STATUS FOR SPOUSES AND CHILDREN-

(1) IN GENERAL- Notwithstanding section 245(c) of the Immigration and Nationality Act, the status of an alien shall be adjusted by the Secretary of Homeland Security to that of an alien lawfully admitted for permanent residence, if--

(A) the alien is a national of a Caribbean country;

(B) the spouse, child, or unmarried son or daughter, of an alien whose status is adjusted to that of an alien lawfully admitted for permanent residence under subsection (a), except that in the case of such an unmarried son or daughter, the son or daughter shall be required to establish that they have been physically present in the United States for a continuous period, beginning not later than December 1, 1995, and ending not earlier than the date the application for adjustment is filed;

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

(D) the alien is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence, except in determining such admissibility the grounds for exclusion specified in paragraphs (4), (5), (6)(A), and (7)(A) of section 212(a) of the Immigration and Nationality Act shall not apply; and

(E) applies for such adjustment before April 1, 2004.

(2) PROOF OF CONTINUOUS PRESENCE- For purposes of establishing the period of continuous physical presence referred to in paragraph (1)(B), an alien--

(A) shall demonstrate that such period commenced not later than December 1, 1995, in a manner consistent with subsection (b)(2); and

(B) shall not be considered to have failed to maintain continuous physical presence by reason of an absence, or absences, from the United States for any period in the aggregate not exceeding 180 days.

(e) AVAILABILITY OF ADMINISTRATIVE REVIEW- The Secretary of Homeland Security shall provide to applicants for adjustment of status under subsection (a) the same right to, and procedures for, administrative review as are provided to--

(1) applicants for adjustment of status under section 245 of the Immigration and Nationality Act; or

(2) aliens subject to removal proceedings under section 240 of such Act.

(f) LIMITATION ON JUDICIAL REVIEW- A determination by the Secretary of Homeland Security as to whether the status of any alien should be adjusted under this section is final and shall not be subject to review by any court.

(g) NO OFFSET IN NUMBER OF VISAS AVAILABLE- When an alien is granted the status of having been lawfully admitted for permanent residence pursuant to this section, the Secretary of State shall not be required to reduce the number of immigrant visas authorized to be issued under any provision of the Immigration and Nationality Act.

(h) APPLICATION OF IMMIGRATION AND NATIONALITY ACT PROVISIONS- Except as otherwise specifically provided in this section, the definitions contained in the Immigration and Nationality Act shall apply in the administration of this section. Nothing contained in this section shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the Secretary of Homeland Security in the administration and enforcement of such Act or any other law relating to immigration, nationality, or naturalization. The fact that an alien may be eligible to be granted the status of having been lawfully admitted for permanent residence under this section shall not preclude the alien from seeking such status under any other provision of law for which the alien may be eligible.

TITLE II--VISA FAIRNESS COMMISSION

SEC. 201. ESTABLISHMENT.

There is established in the Department of Homeland Security's Bureau of Citizenship and Immigration Services a commission to be known as the Visa Fairness Commission (hereafter in this title referred to as the `Commission').

SEC. 202. DUTIES.

(a) DATA COLLECTION- The Commission, in consultation with the Director of the Bureau of Citizenship and Immigration Services, shall gather empirical data on economic and racial profiling by the Consular Affairs office in American embassies and by Customs and immigration inspectors at US points of entry. In carrying out the preceding sentence, the Commission and the Director shall, to the extent practicable, avoid duplication of administration efforts.

(b) IN GENERAL- Section 376 of the Immigration and Nationality Act (8 U.S.C. 1351) is amended by adding in subsection (a) the following:

`(3) FEE WAIVER--The Secretary of State shall waive the visa fee for those who can prove in forma pauperis status.'.

SEC. 203. MEMBERSHIP.

(a) NUMBER AND APPOINTMENT- The Commission shall be composed of 15 members appointed by the Director of the Bureau of Citizenship and Immigration Services. Members on the Commission shall be broadly representative of the ethnic, religious, majority and minority groups comprising the United States.

(b) WAIVER OF LIMITATION ON EXECUTIVE SCHEDULE POSITIONS- Appointments may be made under this section without regard to section 5311(b) of title 5, United States Code.

(c) POLITICAL AFFILIATION- Not more than 8 members appointed may be of the same political party.

(d) TERMS-

(1) IN GENERAL- Each member shall be appointed for a term of two years, except as provided.

(e) BASIC PAY-

(1) RATES OF PAY- Except as provided in paragraph (2), member shall serve without pay.

(2) PROHIBITION OF COMPENSATION OF FEDERAL EMPLOYEES- Members of the Commission who are full-time officers or employees of the United States may not receive additional pay, allowances, or benefits by reason of their services on the Commission.

(f) TRAVEL EXPENSES- Each member shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(g) QUORUM- Eight members of the Commission shall constitute a quorum but a lesser number may hold hearings.

(h) CHAIRMAN; VICE CHAIRMAN- The Chairman and Vice Chairman of the Commission shall be designated by the Director of the Bureau of Citizenship and Immigration Services at the time of the appointment.

(i) MEETINGS- The Commission shall meet at the call of the Chairman or a majority of its members.

SEC. 204. DIRECTOR AND STAFF OF COMMISSION; EXPERTS AND CONSULTANTS.

(a) DIRECTOR- The Commission shall, without regard to section 5311(b) of title 5, United States Code, have a Director who shall be appointed by the Commission. The Director shall be paid at a rate not to exceed the rate of basic pay payable for level V of the Executive Schedule.

(b) STAFF- Subject to rules prescribed by the Commission, and without regard to section 5311(b) of title 5, United States Code, the Director may appoint additional personnel as the Director considers appropriate.

(c) APPLICABILITY OF CERTAIN CIVIL SERVICE LAWS- The Director and staff of the Commission shall be appointed subject to the provisions of title 5, United State Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates.

(d) EXPERTS AND CONSULTANTS- Subject to rules prescribed by the Commission, the Director may procure temporary and intermittent services under section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the rate basic pay payable for level V of the Executive Schedule.

(e) STAFF OF FEDERAL AGENCIES- Upon request of the Director, the head of any Federal department or agency may detail, on a reimbursable basis, any of the personnel of that department or agency to the Commission to assist it in carrying out its duties under this Act.

SEC. 205. POWERS OF COMMISSION.

(a) HEARINGS AND SESSIONS- The Commission may, for the purpose of carrying out this Act, hold hearings, sit and act at times and places, take testimony, and receive evidence as the Commission considers appropriate.

The Commission may administer oaths or affirmations to witnesses appearing before it.

(b) POWERS OF MEMBERS AND AGENTS- Any member or agent of the Commission may, if authorized by the Commission take any action which the Commission is authorized to take by this section.

(c) OBTAINING OFFICIAL DATA- The Commission may secure directly from any department or agency of the United States information necessary to enable it to carry out this Act. Upon request of the Chairman or Vice Chairman of the Commission, the head of the department or agency shall furnish that information to the Commission, the head of that department or agency shall furnish that information to the Commission.

(d) GIFTS, BEQUESTS, AND DEVISES- The Commission may accept, use, and dispose of gifts, bequests, or devises of services or property, both real and personal, for the purpose of aiding or facilitating the work of the Commission. Gifts, bequests, or devises of money and proceeds from sales of other property received as gifts, bequests, or devises shall be deposited in the Treasury and shall be available for disbursement upon order of the Chairman.

(e) MAILS- The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.

(f) ADMINISTRATIVE SUPPORT SERVICES- Upon the request of the Commission, the Administrator of General Services shall provide to the Commission, on a reimbursable basis, the administrative support services necessary for the Commission to carry out its responsibilities under the Act.

(g) Subpoena Power-

(1) IN GENERAL- The Commission may issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to any matter under investigation by the Commission. The attendance of witnesses and the production of evidence may be required from any place within the United States at any designated place of hearing within the United States.

(2) FAILURE TO OBEY A SUBPOENA- If a person refuses to obey a subpoena issued under paragraph (1), the Commission may apply to a United States district court for an order requiring that person to appear before the Commission to give testimony, produce evidence, or both, relating to the matter under investigation. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey the order of the court may be punished by the court as civil contempt.

(3) SERVICE OF SUBPOENAS- The subpoenas of the Commission shall be served in the manner provided for subpoenas issued by a United States district court under the Federal Rules of Civil Procedure for the United States district courts.

(4) SERVICE OF PROCESS- All process of any court to which application is made under paragraph (2) may be served in the judicial district in which the person required to be served resides or may be found.

(h) IMMUNITY- Except as provided in this subsection, a person may not be excused from testifying or from producing evidence pursuant to a subpoena on the ground that the testimony or evidence required by the subpoena may tend to incriminate or subject that person to criminal prosecution. A person, after having claimed the privilege against self-incrimination, may not be criminally prosecuted by reason of any transaction, matter, or thing about which that person is compelled to testify or relating to which that person is compelled to produce evidence, except that the person may be prosecuted for perjury committed during the testimony or made in the evidence.

(i) CONTRACT AUTHORITY- The Commission may contract with and compensate government and private agencies or persons for property and services, without regard to section 3709 of the Revised Statutes (41 U.S.C. 5).

SEC. 206. ANNUAL REPORTS.

The Commission shall transmit an annual report to the Director of the Bureau of Citizenship and Immigration Services and the Congress not later than December 31 of each year. Each such report shall contain a detailed statement of activities of the Commission during the fiscal year ending in the year in which such report is required to be submitted.

SEC. 207. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be necessary to complete the study.

TITLE III--ELIGIBILITY FOR ADJUSTMENT OF STATUS

SEC. 301. REMOVAL OF CERTAIN LIMITATIONS ON ELIGIBILITY FOR ADJUSTMENT OF STATUS UNDER SECTION 245(i).

Section 245(i) of the Immigration and Nationality Act (8 U.S.C. 1255(i)) is amended--

(1) in paragraph (1), by striking `(i)(1)' through `to that of an alien lawfully admitted for permanent residence.' and inserting the following:

`(i)(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States who--

`(A) entered the United States without inspection; or

`(B) is within one of the classes enumerated in subsection (c) of this section;

may apply to the Secretary of Homeland Security for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.'; and

(2) in paragraph (3)(B), by striking `, except that' through `286(m)'.

END