To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine State residency for higher education purposes and to authorize the cancellation of removal and adjustment of status of certain alien students who are long-term United States residents.

July 31 (legislative day, JULY 21), 2003

Mr. HATCH (for himself, Mr. DURBIN, Mr. LUGAR, Mr. LEAHY, Mr. CRAIG, Mr. FEINGOLD, Mr. CRAPO, and Mr. GRASSLEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine State residency for higher education purposes and to authorize the cancellation of removal and adjustment of status of certain alien students who are long-term United States residents.

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 `Development, Relief, and Education for Alien Minors Act of 2003' or `DREAM Act'.

SEC. 2. DEFINITION OF INSTITUTION OF HIGHER EDUCATION.

In this Act, the term `institution of higher education' has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).

SEC. 3. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY FOR PURPOSES OF HIGHER EDUCATION BENEFITS.

(a) IN GENERAL- Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed.

(b) EFFECTIVE DATE- The repeal described in subsection (a) shall take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS CHILDREN.

(a) SPECIAL RULE FOR ALIENS IN QUALIFIED INSTITUTIONS OF HIGHER EDUCATION-

(1) IN GENERAL- Notwithstanding any other provision of law and except as otherwise provided in this Act, the Secretary of Homeland Security may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, subject to the conditional basis described in section 5, an alien who is inadmissible or deportable from the United States, if the alien demonstrates that--

(A) the alien has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry;

(B) the alien has been a person of good moral character since the time of application;

(C) the alien--

(i) is not inadmissible under paragraph (2), (3), (6)(B), (6)(C), (6)(E), (6)(F), or (6)(G) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)), or, if inadmissible solely under subparagraphs (C) and (F) of paragraph (6) of such section by reason of a false representation of United States citizenship, the alien was under the age of 16 years when the representation was made and was not the principal applicant in the fraudulent or false application for benefit under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and

(ii) is not deportable under paragraph (1)(E), (1)(G), (2), (3)(B), (3)(C), (3)(D), (4), or (6) of section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a));

(D) the alien, at the time of application, has been admitted to an institution of higher education, or has earned a high school diploma or obtained a general education development certificate; and

(E) the alien has never been under a final administrative or judicial order of exclusion, deportation, or removal, unless the alien has remained in the United States under color of law or received the order before attaining the age of 16 years.

(F) The Secretary of Homeland Security may waive the grounds of ineligibility under section 212(a)(6) of the Immigration and Nationality Act and the grounds of deportability under paragraphs (1), (3), and (6) of section 237(a) of that Act for humanitarian purposes or family unity or when it is otherwise in the public interest.

(2) PROCEDURES- The Secretary of Homeland Security shall provide a procedure by regulation allowing eligible individuals to apply affirmatively for the relief available under this subsection without being placed in removal proceedings.

(b) 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 this section shall not terminate when the alien is served a notice to appear under section 239(a) of the Immigration and Nationality Act (8 U.S.C. 1229(a)).

(c) TREATMENT OF CERTAIN BREAKS IN PRESENCE-

(1) IN GENERAL- An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsection (a) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.

(2) EXTENSIONS FOR EXCEPTIONAL CIRCUMSTANCES- The Secretary of Homeland Security may extend the time periods described in paragraph

(1) 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.

(d) EXEMPTION FROM NUMERICAL LIMITATIONS- Nothing in this section may be construed to apply a numerical limitation on the number of aliens who may be eligible for cancellation of removal or adjustment of status under this section.

(e) REGULATIONS-

(1) PROPOSED REGULATIONS- Not later than 180 days after the date of enactment of this Act, the Secretary of Homeland Security shall publish proposed regulations implementing this section. Such regulations shall be effective immediately on an interim basis, but are subject to change and revision after public notice and opportunity for a period for public comment.

(2) INTERIM, FINAL REGULATIONS- Within a reasonable time after publication of the interim regulations in accordance with paragraph (1), the Secretary of Homeland Security shall publish final regulations implementing this section.

(f) REMOVAL OF ALIEN- The Secretary of Homeland Security shall not remove any alien who has a pending application for conditional status under this Act.

SEC. 5. CONDITIONAL PERMANENT RESIDENT STATUS.

(a) IN GENERAL-

(1) CONDITIONAL BASIS FOR STATUS- Notwithstanding any other provision of law, and except as provided in section 6, an alien whose status has been adjusted under section 4 to that of an alien lawfully admitted for permanent residence shall be considered to have obtained such status on a conditional basis subject to the provisions of this section. Such conditional resident status shall be valid for a period of 6 years, subject to termination under subsection (b).

(2) NOTICE OF REQUIREMENTS-

(A) AT TIME OF OBTAINING PERMANENT RESIDENCE- At the time an alien obtains permanent resident status on a conditional basis under paragraph (1), the Secretary of Homeland Security shall provide for notice to the alien regarding the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed.

(B) EFFECT OF FAILURE TO PROVIDE NOTICE- The failure of the Secretary of Homeland Security to provide a notice under this paragraph--

(i) shall not affect the enforcement of the provisions of this Act with respect to the alien; and

(ii) shall not give rise to any private right of action by the alien.

(b) TERMINATION OF STATUS-

(1) IN GENERAL- The Secretary of Homeland Security shall terminate the conditional permanent resident status of any alien who obtained such status under this Act, if the Secretary determines that the alien--

(A) has violated any provision of subparagraph (B) or (C) of section 4(a)(1);

(B) has become a public charge; or

(C) in the case of an alien who received conditional permanent resident status under section 4(a)(1)(B), has received a dishonorable or other than honorable discharge from the Armed Forces of the United States.

(2) RETURN TO PREVIOUS IMMIGRATION STATUS- Any alien whose permanent resident status is terminated under paragraph (1) shall return to the immigration status the alien had immediately prior to receiving conditional permanent resident status under this Act.

(c) REQUIREMENTS OF TIMELY PETITION FOR REMOVAL OF CONDITION-

(1) IN GENERAL- In order for the conditional basis of permanent resident status obtained by an alien under subsection (a) to be removed, the alien must file with the Secretary of Homeland Security, in accordance with paragraph (3), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1).

(2) ADJUDICATION OF PETITION TO REMOVE CONDITION-

(A) IN GENERAL- If a petition is filed in accordance with paragraph (1), the Secretary of Homeland Security shall make a determination as to whether the facts and information described in subsection (d)(1) and alleged in the petition are true with respect to the eligibility of the alien.

(B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION- If the Secretary of Homeland Security determines that the facts and information alleged in the petition are true, the Secretary of Homeland Security shall so notify the alien and shall immediately remove the conditional basis of the status of the alien.

(C) TERMINATION IF ADVERSE DETERMINATION- If the Secretary of Homeland Security determines that such facts and information alleged in the petition are not true, the Secretary of Homeland Security shall so notify the alien and shall terminate the permanent resident status of the alien as of the date of the determination.

(3) TIME TO FILE PETITION- An alien may petition to remove the conditional basis to lawful resident status during the period beginning 180 days before and ending 2 years after either the date that is 6 years after the date of the granting of conditional resident status or any other expiration date of the conditional resident status as extended by the Secretary of Homeland Security in accordance with this Act. The alien shall be deemed in lawful status

in the United States during the period in which the petition is pending.

(d) DETAILS OF PETITION-

(1) CONTENTS OF PETITION- Each petition under subsection (c)(1) shall contain the following facts and information:

(A) The alien maintained good moral character during the entire period the alien has been a conditional permanent resident.

(B) The alien continues to be in compliance with subparagraphs (B) and (C) of section 4(a)(1).

(C) The alien has maintained continuous physical residence in the United States since adjustment of status to that of a conditional permanent resident. For the purpose of determining continuous physical presence under this subparagraph, section 4(c) shall apply.

(D) The alien has completed at least 1 of the following:

(i) The alien has acquired a degree from an institution of higher education or has been a student in good standing for at least 2 years in a program for a bachelor's degree or higher degree.

(ii) The alien has served in the Armed Forces of the United States for at least 2 years and, if discharged, has received an honorable discharge.

(iii) The alien has performed at least 910 hours of volunteer community service in a program of an organization that has been determined to be eligible to receive funds from the Combined Federal Campaign administered by the United States Office of Personnel Management or a program approved by the Secretary of Homeland Security in consultation with the Director of U.S.A. Freedom Corps.

(2) HARDSHIP EXCEPTION-

(A) IN GENERAL- The Secretary of Homeland Security may, in the Secretary's discretion, remove the conditional status of an alien if the alien--

(i) satisfies the requirements of subparagraphs (A), (B), and (C) of paragraph (1);

(ii) demonstrates compelling circumstances for the inability to complete the requirements described in paragraph (1)(D); and

(iii) demonstrates that the alien's removal from the United States would result in exceptional and extremely unusual hardship to the alien or the alien's spouse, parent, or child who is a citizen or a lawful permanent resident of the United States.

(B) EXTENSION- Upon a showing of good cause, the Secretary of Homeland Security may also extend the validity period of the conditional resident status for the purpose of completing the requirements described in paragraph (1)(D).

(e) TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZATION- For purposes of title III of the Immigration and Nationality Act (8 U.S.C. 1401 et seq.), in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence. However, the conditional basis must be removed before the alien may apply for naturalization.

SEC. 6. RETROACTIVE BENEFITS UNDER THIS ACT.

An alien who, prior to the date of enactment of this Act, has satisfied all the requirements of both sections 4 and 5, may petition the Secretary of Homeland Security for permanent resident status without first becoming a conditional resident.

SEC. 7. EXCLUSIVE JURISDICTION.

(a) IN GENERAL- The Secretary of Homeland Security shall have exclusive jurisdiction to determine eligibility for relief under this Act, except where the alien has been placed into deportation, exclusion, or removal proceedings either prior to or after filing an application for relief under this Act, in which case the Attorney General shall have exclusive jurisdiction and shall assume all the powers and duties of the Secretary of Homeland Security until proceedings are terminated, or if a final order of deportation, exclusion, or removal is entered the Secretary of Homeland Security shall resume all powers and duties delegated to the Secretary of Homeland Security under this Act.

(b) STAY OF REMOVAL OF CERTAIN ALIENS ENROLLED IN PRIMARY OR SECONDARY SCHOOL- The Attorney General shall stay the removal proceedings of any alien who--

(1) meets all the requirements for relief under this Act, except that the alien has not yet graduated from high school;

(2) is at least 12 years of age; and

(3) is enrolled full-time in a primary or secondary school.

(c) EMPLOYMENT- An alien whose removal is stayed pursuant to subsection (b) may be engaged in employment in the United States.

(d) LIFT OF STAY- The Attorney General shall lift the stay granted pursuant to subsection (b) if the alien--

(1) is no longer enrolled in a primary or secondary school; and

(2) fails to maintain prima facie eligibility for relief under this Act.

SEC. 8. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.

Whoever files an application for relief under this Act and willfully and knowingly falsifies, misrepresents, or conceals 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, shall be fined in accordance with title 18, United States Code, or imprisoned not more than 5 years, or both.

SEC. 9. CONFIDENTIALITY OF INFORMATION.

(a) PROHIBITION- No officer or employee of the United States may--

(1) use the information furnished by the applicant pursuant to an application filed under this Act for any purpose other than to make a determination on the application;

(2) make any publication whereby the information furnished by any particular individual pursuant to an application under this Act can be identified; or

(3) permit anyone other than an officer or employee of the Department of Justice or, in the case of applications filed under this Act with a designated entity, that designated entity, to examine applications filed under this Act.

(b) PENALTY- Whoever knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.

SEC. 10. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON FEES.

Regulations promulgated under this Act shall provide that applications under this Act will be considered on an expedited basis and without a requirement for the payment by the applicant of any additional fee for such expedited processing.

SEC. 11. GAO REPORT.

Seven years after the date of enactment of this Act, the Comptroller General of the United States shall submit a report to the Committees on the Judiciary of the Senate and the House of Representatives setting forth--

(1) the number of aliens who were eligible for cancellation of removal and adjustment of status during the application period described in section 4(a)(1)(A);

(2) the number of aliens who applied for adjustment of status under section 4(a);

(3) the number of aliens who were granted adjustment of status under section 4(a); and

(4) the number of aliens with respect to whom the conditional basis of their status was removed under section 5.

END