To amend the Immigration and Nationality Act to reunify families, permit earned access to permanent resident status, provide protection against unfair immigration-related employment practices, reform the diversity visa program, provide adjustment of status for Haitians and Liberian nationals, and for other purposes.

January 6, 2005

Ms. JACKSON-LEE of Texas introduced the following bill; which was referred to the Committee on the Judiciary

To amend the Immigration and Nationality Act to reunify families, permit earned access to permanent resident status, provide protection against unfair immigration-related employment practices, reform the diversity visa program, provide adjustment of status for Haitians and Liberian nationals, 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 `Comprehensive Immigration Fairness Act'.

TITLE I--FAMILY REUNIFICATION AND DISCRETIONARY RELIEF

SEC. 101. PERMANENT APPLICATION OF SECTION 245(i).

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

(1) by inserting `and' at the end of paragraph (1)(A);

(2) by amending paragraph (1)(B) to read as follows:

`(B) who is the beneficiary (including a spouse or child of the principal alien) of--

`(i) a petition for classification under section 204; or

`(ii) an application for a labor certification under section 212(a)(5)(A);';

(3) by striking paragraph (1)(C); and

(4) by striking `Attorney General' each place such term appears and inserting `Secretary of Homeland Security'.

SEC. 102. DISCRETIONARY WAIVER OF INADMISSIBILITY BASED ON UNLAWFUL PRESENCE, FAILURE TO ATTEND REMOVAL PROCEEDINGS, AND MISREPRESENTATIONS.

(a) In General- Section 212(i) of the Immigration and Nationality Act (8 U.S.C. 1182(i)) is amended to read as follows:

`(i) The Secretary of Homeland Security may waive the application of subparagraph (A)(i) or (B), or clause (i) or (ii) of subparagraph (C), of subsection (a)(6) in the case of an immigrant who is the parent, spouse, son, or daughter of a United States citizen or of an alien lawfully admitted to the United States for permanent residence, if it is established to the satisfaction of the Secretary that the refusal of admission to the United States of such immigrant would result in hardship to the immigrant or to such citizen or lawful permanent resident parent, spouse, son, or daughter.'.

(b) Conforming Amendments- Section 212(a)(6) of such Act (8 U.S.C. 1182(a)(6)) is amended--

(1) in subparagraph (A), by adding at the end the following:

`(iii) WAIVER AUTHORIZED- For a provision authorizing the waiver of clause (i), see subsection (i).';

(2) in subparagraph (B)--

(A) by inserting `(i)' after the subparagraph heading; and

(B) by adding at the end the following:

`(ii) WAIVER AUTHORIZED- For a provision authorizing the waiver of clause (i), see subsection (i).'; and

(3) in subparagraph (C)(iii), by inserting `or (ii)' after `(i)'.

SEC. 103. GENERAL WAIVER FOR ALIENS PREVIOUSLY REMOVED AND FOR THE UNLAWFUL PRESENCE BARS.

(a) In General- Section 212(d) of the Immigration and Nationality Act (8 U.S.C. 1182(d)) is amended by adding at the end the following:

`(14) The Secretary of Homeland Security may, in the discretion of the Secretary, for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive the application of subparagraph (A) or (B)(i) of subsection (a)(9).'.

(b) Conforming Amendment- Section 212(a)(9)(B) of such Act (8 U.S.C. 1182(a)(9)(B)) is amended by striking clause (v).

SEC. 104. ADDRESSING THE PROBLEM OF VISA NUMBER BACKLOGS FOR THE FAMILY MEMBERS OF CITIZENS AND LAWFUL PERMANENT RESIDENTS.

(a) Classes of Nonimmigrant Aliens- Section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) is amended--

(1) by striking `or' at the end of clause (ii);

(2) by adding `or' at the end of clause (iii); and

(3) by adding at the end the following:

`(iv)(I) has concluded a valid marriage with an alien lawfully admitted for permanent residence, is the parent of a citizen of the United States, or is the son or daughter of an alien lawfully admitted for permanent residence or a citizen of the United States; (II) is the beneficiary of a petition to accord immigrant status on the basis of such family relationship that was filed under section 204 by such family member; (III) has waited more than 6 months for the approval of such petition or the availability to the alien of an immigrant visa; and (IV) seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa;'.

(b) Admission of Nonimmigrants- Section 214(d) of such Act (8 U.S.C. 1184(d)) is amended--

(1) by striking `(d)' and inserting `(d)(1)'; and

(2) by adding at the end the following:

`(2) A visa shall not be issued under the provisions of section 101(a)(15)(K)(iv) until the consular officer has received a petition filed in the United States by the lawful permanent resident or citizen relative of the applying alien and approved by the Secretary of Homeland Security. The petition shall be in such form and contain such information as the Secretary shall, by regulation, prescribe.'.

SEC. 105. WAIVER OF AGGRAVATED FELONY CONSEQUENCES.

Section 101 of the Immigration and Nationality Act (8 U.S.C. 1101) is amended by adding at the end the following:

`(j) For purposes of this Act, and notwithstanding subsection (a)(43), the Secretary of Homeland Security may treat any conviction that did not result in incarceration for more than 1 year as if such conviction were not a conviction for an aggravated felony. This discretion may be exercised for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.'.

SEC. 106. AGE-OUT PROTECTION FOR CHILDREN.

(a) In General- Chapter 1 of title IV of the Immigration and Nationality Act (8 U.S.C. 1101 note) is amended by adding at the end the following:

`AGE-OUT PROTECTION FOR CHILDREN

`SEC. 408. (a) In General- In the case of an application initially to grant a benefit under this Act (other than an application for naturalization) that otherwise would be granted only after a determination that the beneficiary of the application is a child (such as classification as an immediate relative under section 201(b)(2)(A)(i)), if the application is neither approved nor denied (on procedural or substantive grounds) during the 90-day period beginning on the date of the filing of the application, the beneficiary shall be considered to be a child for all purposes related to the receipt of the benefit if the beneficiary was a child on the last day of such 90-day period, and the beneficiary shall not otherwise be prejudiced with respect to such determination by such delay, and shall be considered to be a child under this Act for all purposes related to such application.

`(b) Termination of Benefit- Subsection (a) shall remain in effect until the termination of the 1-year period beginning on the date on which the application described in such paragraph is approved.'.

(b) Clerical Amendment- The table of contents for the Immigration and Nationality Act is amended by inserting after the item relating to section 407 the following:

`408. Age-out protection for children.'.

SEC. 107. TIMELINESS OF ADOPTION FOR IMMIGRATION PURPOSES.

(a) In General- Section 101(b)(1)(E)(i) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(E)(i)) is amended by striking `a child adopted while under the age of sixteen years' and inserting `a child, under the age of 16 when adoption proceedings were initiated,'.

(b) Special Rule for Siblings- Section 101(b)(1)(E)(ii)(III) of such Act (8 U.S.C. 1101(b)(1)(E)(ii)(III)) is amended by striking `adopted while under the age of 18 years' and inserting `under the age of 18 when adoption proceedings were initiated'.

SEC. 108. DISCRETIONARY WAIVER TO ADMIT PERSONS IN UNUSUAL CIRCUMSTANCES.

(a) New General Waiver- Section 212(d) of the Immigration and Nationality Act (8 U.S.C. 1182(d)) is amended by adding at the end the following:

`(13) The Secretary of Homeland Security may, in the discretion of such Secretary for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive the application of subparagraph (B) or (G) of subsection (a)(6), clause (i) or (ii) of subsection (a)(9)(A), or subsection (a)(9)(B)(i), in unusual circumstances. For purposes of the preceding sentence, an instance of battering or extreme cruelty is deemed to constitute unusual circumstances in the case where it is inflicted on an alien (or a child of an alien) by the alien's United States citizen or lawful permanent resident spouse, parent, child, son, or daughter.'.

(b) Waiver for Aliens Previously Removed-

(1) CERTAIN ALIENS PREVIOUSLY REMOVED- Section 212(a)(9)(A) of such Act (8 U.S.C. 1182(a)(9)(A)) is amended by adding at the end the following:

`(iv) WAIVER AUTHORIZED- For provision authorizing waiver of clause (i) or (ii), see subsection (d)(13).'.

(2) ALIENS UNLAWFULLY PRESENT- Section 212(a)(9)(B)(v) of such Act (8 U.S.C. 1182(A)(9)(B)(v)) is amended to read as follows:

`(v) WAIVER AUTHORIZED- For provision authorizing waiver of clause (i), see subsection (d)(13).'.

TITLE II--EARNED ACCESS TO LEGALIZATION AND REGISTRY UPDATE

SEC. 201. ADJUSTMENT OF STATUS ON THE BASIS OF EARNED ACCESS TO LEGALIZATION.

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

`ADJUSTMENT OF STATUS ON THE BASIS OF EARNED ACCESS TO LEGALIZATION

`SEC. 245B. (a) In General- The Secretary of Homeland Security may adjust the status of an alien to that of an alien lawfully admitted for permanent residence if the alien--

`(1) was physically present in the United States for a continuous period of not less than 5 years immediately preceding the date on which this provision was enacted and has maintained continuous physical presence since then;

`(2) has at all times been a person of good moral character;

`(3) has never been convicted of a criminal offense in the United States;

`(4) in the case of an alien who is 18 years of age or older, but who is not over the age of 65, has successfully completed a course on reading, writing, and speaking words in ordinary usage in the English language, unless unable to do so on account of physical or developmental disability or mental impairment;

`(5) in the case of an alien 18 years of age or older, has accepted the values and cultural life of the United States; and

`(6) in the case of an alien 18 years of age or older, has performed at least 40 hours of community service.

`(b) Treatment of Brief, Casual, and Innocent Absences- An alien shall not be considered to have failed to maintain a continuous presence in the United States for purposes of subsection (a)(1) by virtue of brief, casual, and innocent absences from the United States.

`(c) Admissible as Immigrant-

`(1) IN GENERAL- The alien shall establish that the alien is admissible to the United States as immigrant, except as otherwise provided in paragraph (2).

`(2) EXCEPTIONS- The provisions of paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and (9)(C)(i)(I) of section 212(a) shall not apply in the determination of an alien's admissibility under this section.

`(d) Security and Law Enforcement Clearances- The alien, if over 15 years of age, shall submit fingerprints in accordance with procedures established by the Secretary of Homeland Security. Such fingerprints shall be submitted to relevant Federal agencies to be checked against existing databases for information relating to criminal, national security, or other law enforcement actions that would render the alien ineligible for adjustment of status under this section. The Secretary of Homeland Security shall provide a process for challenging the accuracy of matches that result in a finding of ineligibility for adjustment of status.

`(e) Inapplicability of Numerical Limitations- When an alien is granted lawful permanent resident status under this subsection, the number of immigrant visas authorized to be issued under any provision of this Act shall not be reduced. The numerical limitations of sections 201 and 202 shall not apply to adjustment of status under this section.

`(f) Termination of Proceedings- The Secretary of Homeland Security may terminate removal proceedings without prejudice pending the outcome of an alien's application for adjustment of status under this section on the basis of a prima facie showing of eligibility for relief under this section.'.

(b) Clerical Amendment- The table of contents for the Immigration and Nationality Act is amended by inserting after the item relating to section 245A the following:

`245B. Adjustment of status on the basis of earned access to legalization.'.

SEC. 202. AUTHORITY TO ADJUST STATUS OF CERTAIN CHILDREN.

(a) In General- Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.), as amended by section 201, is further amended by inserting after section 245B the following:

`ADJUSTMENT OF STATUS FOR CERTAIN CHILDREN

`SEC. 245C. (a) In General- The Secretary of Homeland Security may adjust the status of an alien to that of an alien lawfully admitted for permanent residence if the alien is a child at the time of filing the application for such adjustment and establishes that the alien, at such time--

`(1) has been physically present and enrolled in school in the United States for a continuous period of not less than 5 years immediately preceding the date of such application, and during that period has been a person of good moral character;

`(2) has fully integrated into life in the United States;

`(3) has learned English or is satisfactorily pursuing a course of study to achieve an understanding of English;

`(4) is successfully pursuing an elementary school, middle school, high school, or college-level education; and

`(5) if older than 13 years of age, has performed at least 60 hours of community service.

`(b) Treatment of Brief, Casual, and Innocent Absences- An alien shall not be considered to have failed to maintain a continuous presence in the United States for purposes of subsection (a)(1) by virtue of brief, casual, and innocent absences from the United States.

`(c) Admissible as Immigrant-

`(1) IN GENERAL- The alien shall establish that the alien is admissible to the United States as an immigrant, except as otherwise provided in paragraph (2).

`(2) APPLICABILITY OF CERTAIN PROVISIONS-

`(A) GROUNDS OF INADMISSIBILITY NOT APPLIED- The provisions of paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and (9)(C) of section 212(a) shall not apply in the determination of an alien's admissibility under this section.

`(B) WAIVER OF OTHER GROUNDS-

`(i) IN GENERAL- Except as provided in clause (ii), the Secretary of Homeland Security may waive any other provision of section 212(a) in the case of an individual alien 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 Secretary 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).

`(d) No Numerical Limitations- The numerical limitations of sections 201 and 202 shall not apply to adjustment of status under this section.

`(e) Confidentiality of Information- Except as provided in this section, neither the Secretary of Homeland Security, nor any other official or employee of the Department of Homeland Security, may--

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

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

`(3) permit anyone other than the sworn officers and employees of the Department, the applicant, or a representative of the applicant to examine individual applications.

`(f) Dissemination of Information- The Secretary of Homeland Security shall broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits.'.

(b) Clerical Amendment- The table of contents for the Immigration and Nationality Act, as amended by section 201, is amended further by inserting after the item relating to section 245B the following:

`245C. Adjustment of status for certain children.'.

SEC. 203. RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF CERTAIN ALIENS.

(a) In General- Section 249 of the Immigration and Nationality Act (8 U.S.C. 1259) is amended--

(1) in the section heading by striking `1972' and inserting `1986'; and

(2) in paragraph (a), by striking `1972' and inserting `1986'.

(b) Clerical Amendment- The table of sections is amended in the item relating to section 249 by striking `1972' and inserting `1986'.

TITLE III--EMPLOYEE PROTECTIONS

SEC. 301. UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES.

Section 274B of the Immigration and Nationality Act (8 U.S.C. 1324b) is amended--

(1) in subsection (a)(5)--

(A) by amending the paragraph heading to read `Prohibition of intimidation, retaliation, or unlawful discrimination in employment';

(B) by moving the text down and to the right 2 ems;

(C) by inserting before such text the following: `(A) In general- '; and

(D) by adding at the end the following:

`(B) FEDERAL LABOR OR EMPLOYMENT LAWS- It is an unfair employment practice for any employer to directly or indirectly threaten any individual with removal or any other adverse consequences pertaining to that individual's immigration status or employment benefits for the purpose of intimidating, pressuring, or coercing any such individual not to exercise any right protected by state or federal labor or employment law (including section 7 of the National Labor Relations Act (29 U.S.C. 157)), or for the purpose of retaliating against any such individual for having exercised or having stated an intention to exercise any such right.

`(C) DISCRIMINATION BASED ON IMMIGRATION STATUS- It is an unfair employment practice for any employer, except to the extent specifically authorized or required by law, to discriminate in any term or condition of employment against any individual employed by such employer on the basis of such individual's immigration status.'; and

(2) in subsection (c)(2), by adding at the end the following: `The Special Counsel shall not disclose to the Secretary of Homeland Security or any other government agency or employee, and shall not cause to be published in a manner that discloses to the Secretary of Homeland Security or any other government agency or employee, any information obtained by the Special Counsel in any manner concerning the immigration status of any individual who has filed a charge under this section, or the identity of any individual or entity that is a party or witness to a proceedings brought pursuant to such charge. The Secretary of Homeland Security may not rely, in whole or in part, in any enforcement action or removal proceeding, upon any information obtained as a result of the filing or prosecution of an unfair immigration-related employment practice charge. For purposes of this paragraph, the term `Special Counsel' includes individuals formerly appointed to the position of Special Counsel and any current or former employee of the office of the Special Counsel. Whoever knowingly uses, publishes, or permits information to be used in violation of this paragraph shall be fined not more than $10,000'.

SEC. 302. DEPARTMENT OF LABOR TASK FORCE.

The Secretary of Labor, in consultation with the Attorney General and the Secretary of Homeland Security, shall conduct a national study of American workplaces to determine the causes, extent, circumstances, and consequences, of exploitation of undocumented alien workers by their employers. As part of this study, the Secretary of Labor shall create a plan for targeted review of federal labor law enforcement in industries with a substantial immigrant workforce, for the purpose of identifying, monitoring, and deterring frequent or egregious violators of wage and hour, anti-discrimination, National Labor Relations Act, and workplace safety and health requirements. Not later than 18 months after the date of the enactment of this Act, the Secretary of Labor shall submit to the Congress a report describing the results of the study and the Secretary's recommendations based on the study.

SEC. 303. RECRUITMENT OF AMERICAN WORKERS.

Section 214 of the Immigration and Nationality Act is amended--

(1) by redesignating subsections (m) (as added by section 105 of Public Law 106-313), (n) (as added by section 107(e) of Public Law 106-386), (o) (as added by section 1513(c) of Public Law 106-386), (o) (as added by section 1102(b) of the Legal Immigration Family Equity Act), and (p) (as added by section 1503(b) of the Legal Immigration Family Equity Act) as subsections (n), (o), (p), (q), and (r), respectively; and

(2) by adding at the end the following:

`(s)(1) No petition to accord employment status under any nonimmigrant classification described in section 101(a)(15) shall be granted in the absence of an affidavit from the petitioner describing the efforts that were made to recruit an alien lawfully admitted for permanent residence or a citizen of the United States before resorting to a petition to obtain a foreign employee. The recruitment efforts must have included substantial attempts to find employees in minority communities. Recruitment efforts in minority communities should include at least one of the following, if appropriate for the employment being advertised:

`(A) Advertise the availability of the job opportunity for which the employer is seeking a worker in local newspapers in the labor market that is likely to be patronized by a potential worker for at least 5 consecutive days.

`(B) Undertake efforts to advertise the availability of the job opportunity for which the employer is seeking a worker through advertisements in public transportation systems.

`(C) To the extent permitted by local laws and regulations, engage in recruitment activities in secondary schools, recreation centers, community centers, and other places throughout the communities within 50 miles of the job site that serve minorities.

`(2)(A) The Secretary of Homeland Security shall impose a 10 percent surcharge on all fees collected for petitions to accord employment status and shall use these funds to establish an employment training program which will include unemployed workers in the United States who need to be trained or retrained. The purpose of this program shall be to increase the number of lawful permanent residents and citizens of the United States who are available for employment in the occupations that are the subjects of such petitions. At least 50 percent of the funds generated by this provision must be used to train American workers in rural and inner city areas.

`(B) The Secretary of Homeland Security shall reserve and make available to the Secretary of Labor a portion of the funds collected under this paragraph. Such funds shall be used by the Secretary of Labor to establish an `Office to Preserve American Jobs' within the Department of Labor. The purpose of this office shall be to establish policies intended to ensure that employers in the United States will hire available workers in the United States before resorting to foreign labor, giving substantial emphasis to hiring minority workers in the United States.'.

TITLE IV--DIVERSITY VISAS

SEC. 401. INCREASE IN WORLDWIDE LEVEL OF DIVERSITY IMMIGRANTS.

Section 201(e) of the Immigration and Nationality Act (8 U.S.C. 1151(e)) is amended by striking `55,000' and inserting `110,000'.

SEC. 402. PERIOD DESIGNATED FOR APPLICATION.

Section 203(e)(1) of the Immigration and Nationality Act (8 U.S.C. 1153(e)(1)) is amended--

(1) by striking `Attorney General' each place such term appears and inserting `Secretary of Homeland Security'; and

(2) by adding at the end the following: `The Secretary shall provide for a filing system that will permit unlimited filing throughout the entire period designated for the filing of petitions. If an electronic filing system is chosen, the Secretary shall ensure that the computer equipment and software used to accept the filed petitions will have the capacity to accept every application that is submitted during the period designated for filing the petitions. In the event that petitions submitted during the designated period are rejected, the designated period will be extended for an additional 10-day period.'

TITLE V--HAITIAN PARITY

SEC. 501. ADJUSTMENT OF STATUS FOR HAITIANS.

(a) In General- Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.), as amended by section 202, is further amended by inserting after section 245C the following:

`ADJUSTMENT OF STATUS OF CERTAIN HAITIAN NATIONALS

`SEC. 245D. Notwithstanding the provisions of section 245(c), the status of any alien who is a national or citizen of Haiti, and who has been physically present in the United States for at least one year, may be adjusted by the Secretary of Homeland Security, in the Secretary's discretion and under such regulations as the Secretary may prescribe, to that of an alien lawfully admitted for permanent residence, if the alien makes an application for such adjustment and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Secretary shall create a record of the alien's admission for permanent residence as of a date 30 months prior to the filing of such an application or the date of the alien's last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this section, regardless of their citizenship and place of birth, if the spouse or child is residing with such alien in the United States.'.

(b) Clerical Amendment- The table of contents for the Immigration and Nationality Act, as amended by section 202, is further amended by inserting after the item relating to section 245C the following:

`245D. Adjustment of status of certain Haitian nationals.'.

(c) Sunset- The amendments made by this section shall cease to be effective on the date that is 3 years after the date of the enactment of this Act.

SEC. 502. LIMITATION OF ATTORNEY GENERAL'S BOND DISCRETION.

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at the end the following:

`(f) Exercise of Authority for Arrest, Detention, and Release- The Secretary of Homeland Security shall exercise the discretion afforded under subsection (a) on a case-by-case basis. If bond is to be denied on the ground that the alien's release would give rise to adverse consequences for national security or national immigration policy, the finding of such adverse consequences shall be based on circumstances pertaining to the individual alien whose release is being considered.'.

SEC. 503. ELIMINATION OF MANDATORY DETENTION IN EXPEDITED REMOVAL PROCEEDINGS.

Section 235(b)(1)(B)(iii)(IV) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(iii)(IV)) is amended to read as follows:

`(IV) DETENTION- Aliens subject to the procedures under this clause shall be detained in accordance with section 236.'.

SEC. 504. AMENDMENTS TO HAITIAN AND IMMIGRANT FAIRNESS ACT OF 1998.

(a) Ground for Inadmissibility for Document Fraud Does not Apply- The Haitian Refugee Immigration Fairness Act of 1998 (8 U.S.C. 1255 note) is amended in subsections (a)(1)(B) and (d)(1)(D) of section 902 by inserting `(6)(C)(i),' after `(6)(A),'.

(b) Determinations With Respect to Children- Section 902(d) of such Act is amended by adding at the end the following:

`(3) DETERMINATIONS WITH RESPECT TO CHILDREN-

`(A) USE OF APPLICATION FILING DATE- Determinations made under this subsection as to whether an individual is a child of a parent shall be made using the age and status of the individual on the date of the enactment of this section.

`(B) APPLICATION SUBMISSION BY PARENT- Notwithstanding paragraph (1)(C), an application under this subsection filed based on status as a child may be filed for the benefit of such child by a parent or guardian of the child, if the child is physically present in the United States on such filing date.'.

SEC. 505. NEW APPLICATIONS AND MOTIONS TO REOPEN.

(a) New Applications- Notwithstanding section 902(a)(1)(A) of the Haitian and Immigrant Fairness Act of 1998, an alien who is eligible for adjustment of status under such Act, as amended by section 504 of this Act, may submit an application for adjustment of status under such Act not later than the later of--

(1) 2 years after the date of the enactment of this Act; and

(2) 1 year after the date on which final regulations implementing section 504 are promulgated.

(b) Motions to Reopen- The Secretary of Homeland Security shall establish procedures for the reopening and reconsideration of applications for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 that are affected by the amendments under section 504 of this Act.

(c) Relationship of Application to Certain Orders- Section 902(a)(3) of the Haitian and Immigrant Fairness Act of 1998 shall apply to an alien present in the United States who has been ordered excluded, deported, removed, or ordered to depart voluntarily, and who files an application under subsection (a), or a motion under subsection (b), in the same manner as such section 902(a)(3) applied to aliens filing applications for adjustment of status under such Act before April 1, 2000.

SEC. 506. SENSE OF CONGRESS REGARDING TEMPORARY PROTECTED STATUS FOR HAITIANS.

It is the sense of the Congress that the Secretary of Homeland Security should be more liberal with respect to Haiti in deciding whether to designate that country for temporary protected status under section 244(b)(1)(A) of the Immigration and Nationality (8 U.S.C. 1254(b)(1)(A)). It is the sense of the Congress that this decision has sometimes been made without due regard to the serious threat to personal safety that results from sending Haitians back to Haiti during a period of ongoing armed conflict in that country.

TITLE VI--LIBERIAN REFUGEE RELIEF

SEC. 601. ADJUSTMENT OF STATUS OF CERTAIN LIBERIAN NATIONALS.

(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, 2005; 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 on submitting or granting such application, to file a motion to reopen, reconsider, or vacate such order. If the Secretary of Homeland Security grants the application, the Secretary of Homeland Security shall cancel the order. If the Secretary of Homeland Security 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- The benefits provided by subsection (a) shall apply to any alien who--

(1) is a national of Liberia; and

(2)(A) who was granted temporary protected status on or after March 27, 1991; or

(B) was eligible to apply for temporary protected status on or after March 27, 1991.

(c) Stay of Removal-

(1) IN GENERAL- The Secretary of Homeland Security shall provide by regulation for an alien subject to a final order of deportation or removal or exclusion 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 of Homeland Security 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 Act and raises as a defense to such an order the eligibility of the alien to apply for adjustment of status under subsection (a), except where the Secretary of Homeland Security has rendered a final administrative determination to deny the application.

(3) WORK AUTHORIZATION- The Secretary of Homeland Security 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 authorized' 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 of Homeland Security shall authorize such employment.

(d) Adjustment of 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 Liberia;

(B) the alien is 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 at least 1 year and is physically present in the United States on the date the application for such 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; and

(D) the alien is otherwise eligible to receive an immigration 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.

(2) PROOF OF CONTINUOUS PRESENCE- For purposes of establishing the period of continuous physical presence referred to in paragraph (1)(B), 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 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, effect, 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 VII--FAIRNESS IN ASYLUM AND REFUGEE PROCEEDINGS

SEC. 701. REFUGEE STATUS FOR UNMARRIED SONS AND DAUGHTERS OF REFUGEES.

Section 207(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(2)) is amended by adding at the end the following:

`(C) When warranted by unusual circumstances or to preserve family unity, the Attorney General may, in the Attorney General's discretion, consider an unmarried son or daughter of a refugee to be a child of the refugee for purposes of this paragraph.'.

SEC. 702. ASYLEE STATUS FOR UNMARRIED SONS AND DAUGHTERS OF ASYLEES.

Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(3)) is amended by adding at the end the following:

`(C) When warranted by unusual circumstances or to preserve family unity, the Attorney General may, in the Attorney General's discretion, consider an unmarried son or daughter of an alien who is granted asylum under this subsection to be a child of the alien for purposes of this paragraph.'.

SEC. 703. ELIMINATION OF ARBITRARY TIME LIMITS ON ASYLUM APPLICATIONS.

Section 208(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1158(a)(2)) is amended--

(1) by striking subparagraph (B);

(2) in subparagraph (C), by striking `(D),' and inserting `(C),';

(3) in subparagraph (D)--

(A) by striking `subparagraphs (B) and (C),' and inserting `subparagraph (B),';

(B) by striking `either'; and

(C) by striking `asylum or extraordinary' and all that follows through the period at the end and inserting `asylum.'; and

(4) by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively.

SEC. 704. GENDER-BASED PERSECUTION.

(a) Treatment as Refugee- Section 101(a)(42) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(42)) is amended by adding at the end the following:

`(C) For purposes of determinations under this Act, a person who establishes that he or she suffered persecution in the past, or has a well-founded fear of persecution, on account of gender shall be considered to have suffered persecution, or to have a well-founded fear of persecution, on account of membership in a particular social group.'.

(b) Restriction on Removal to Country Where Alien Would Be Threatened- Section 241(b)(3) of such Act (8 U.S.C. 1231(b)(3)) is amended by adding at the end the following:

`(C) GENDER-BASED PERSECUTION- For purposes of determinations under this paragraph, an alien who establishes that the alien's life or freedom would be threatened in a country on account of gender shall be considered to have established that the alien's life or freedom would be threatened in that country on account of membership in a particular social group.'.

SEC. 705. ELIMINATION OF ARBITRARY CAP ON PERSONS ELIGIBLE TO ADJUST STATUS FROM ASYLEES TO LEGAL PERMANENT RESIDENTS.

Section 209(b) of the Immigration and Nationality Act (8 U.S.C. 1159(b)) is amended by striking `Not more than 10,000 of the' and all that follows through `to adjust' and inserting `Subject to a numerical limitation determined by the President before the beginning of each fiscal year, the Attorney General may adjust, in the Attorney General's discretion and under such regulations as the Attorney General may prescribe,'.

TITLE VIII--TEMPORARY PROTECTED STATUS

SEC. 801. ADJUSTMENT OF STATUS FOR CERTAIN RECIPIENTS OF TEMPORARY PROTECTED STATUS.

(a) In General- Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following:

`(n)(1) If, in the opinion of the Secretary of the Homeland Security Department, a person granted temporary protected status under section 244--

`(A) has been physically present in the United States in that status for a continuous period of at least 5 years;

`(B) has at all times been a person of good moral character;

`(C) has never been convicted of a criminal offense in the United States;

`(D) in the case of an alien who is 18 years of age or older, but who is not over the age of 65, has successfully completed a course on reading, writing, and speaking words in ordinary usage in the English language, unless unable to do so on account of physical or developmental disability or mental impairment;

`(E) in the case of an alien 18 years of age or older, has accepted the values and cultural life of the United States; and

`(F) in the case of an alien 18 years of age or older, has performed at least 40 hours of community service;

the Secretary may adjust the status of the alien to that of an alien lawfully admitted for permanent residence.

`(2) An alien shall not be considered to have failed to maintain a continuous presence in the United States for purposes of subsection (a)(1) by virtue of brief, casual, and innocent absences from the United States.

`(3)(A) The alien shall establish that the alien is admissible to the United States as immigrant, except as otherwise provided in paragraph (2).

`(B) The provisions of paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and (9)(C)(i)(I) of section 212(a) shall not apply in the determination of an alien's admissibility under this section.

`(4) When an alien is granted lawful permanent resident status under this subsection, the number of immigrant visas authorized to be issued under any provision of this Act shall not be reduced. The numerical limitations of sections 201 and 202 shall not apply to adjustment of status under this section.

`(5) The Secretary of Homeland Security may terminate removal proceedings without prejudice pending the outcome of an alien's application for adjustment of status under this section on the basis of a prima facie showing of eligibility for relief under this section.'.

(b) Limitation on Consideration in the Senate of Legislation Adjusting Status- Section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a) is amended by striking subsection (h) and redesignating subsection (i) as subsection (h).

SEC. 802. FOREIGN STATE DESIGNATIONS.

Section 244(b)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1254a(b)(1)(C)) is amended to change the following phrase `the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety,' so that it reads as follows: `the Secretary of Homeland Security finds that extraordinary and temporary conditions in the foreign state make returning aliens to the state undesirable for humanitarian reasons,'.

SEC. 803. TECHNICAL CORRECTION.

Section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a) is amended by striking `Attorney General' each place such term appears and inserting `Secretary of Homeland Security'.

TITLE IX--MISCELLANEOUS PROVISIONS

SEC. 901. PHYSICAL PRESENCE REQUIREMENT.

Section 316(a) of the Immigration and Nationality Act (8 U.S.C. 1427) is amended by adding at the end the following:

`When warranted by extraordinary circumstances, the Secretary of Homeland Security may reduce, by not more than 90 days, the physical presence requirement described in the preceding sentence.'.

SEC. 902. ABSENCES FROM THE UNITED STATES.

Section 316(b) of the Immigration and Nationality Act (8 U.S.C. 1427(b)) is amended--

(1) in the first sentence, by striking `one year' and inserting `18 months'; and

(2) in the second sentence, by striking `continuous period of one year' and inserting `continuous period of 18 months'.

SEC. 903. ELIMINATING THE WIDOWED IMMIGRANT'S 2-YEAR MARRIAGE PENALTY.

Section 201(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1251(b)(2)(A)(i)) is amended--

(1) by striking `for at least 2 years'; and

(2) by inserting `, proves by a preponderance of the evidence that the marriage was entered into in good faith and not for the purpose of obtaining an immigration benefit,' after `within 2 years after such date'.

SEC. 904. ELIMINATE THE WIDOWED PERMANENT RESIDENT'S NATURALIZATION PENALTY.

Section 319(a) of the Immigration and Nationality Act (8 U.S.C. 1429(a)) is amended by inserting `or, if the spouse is deceased, the spouse was a citizen of the United States,' after `(a) Any person whose spouse is a citizen of the United States,'.

SEC. 905. ELIMINATION OF BAN ON STATE AND LOCAL GOVERNMENTS FROM PREVENTING COMMUNICATIONS WITH THE DEPARTMENT OF HOMELAND SECURITY.

(a) In General- Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is repealed.

(b) Verification of Eligibility for Federal Public Benefits- Section 432 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1642) is repealed.

SEC. 906. ELIMINATION OF AUTHORITY TO PERMIT STATE PERSONNEL TO CARRY OUT IMMIGRATION OFFICER FUNCTIONS.

Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) is repealed.

END