To amend the Immigration and Nationality Act to protect the well-being of soldiers and their families, and for other purposes.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Lance Corporal Jose Gutierrez Act of 
2008''.

SEC. 2. FACILITATING NATURALIZATION FOR MILITARY PERSONNEL.

    (a) In General.--Any person who served honorably as a member of the 
Armed Forces in support of contingency operations (as defined in 
section 101(a)(13) of title 10, United States Code) shall be eligible 
for naturalization pursuant to section 329 of the Immigration and 
Nationality Act (8 U.S.C. 1440) as if the person had served during a 
period designated by the President under such section 329.
    (b) Naturalization Through Service in the Armed Forces of the 
United States.--Section 328 of the Immigration and Nationality Act (8 
U.S.C. 1439) is amended--
            (1) in subsection (a), by striking ``six months'' and 
        inserting ``one year'';
            (2) by striking subsection (c);
            (3) in subsection (d), by striking ``six months'' and 
        inserting ``one year''; and
            (4) by redesignating subsections (d), (e), and (f) as 
        subsections (c), (d), and (e), respectively.

SEC. 3. FACILITATING REMOVAL OF CONDITIONAL STATUS FOR MILITARY 
              PERSONNEL AND THEIR FAMILIES.

    (a) Period for Filing Petition.--Section 216(d)(2) of the 
Immigration and Nationality Act (8 U.S.C. 1186a(d)(2)) is amended--
            (1) in subparagraph (A), by striking ``subparagraph (B),'' 
        and inserting ``subparagraphs (B) and (D),''; and
            (2) by adding at the end the following:
                    ``(D) Filing of petitions during military 
                service.--In the case of an alien who is serving as a 
                member of the Selected Reserve of the Ready Reserve or 
                in an active-duty status in the military, air, or naval 
                forces of the United States during the 90-day period 
                described in subparagraph (A), the alien may file the 
                petition under subsection (c)(1)(A) during the 6-month 
                period beginning on the date on which the alien is 
                discharged from such service.''.
    (b) Requirements of Timely Petition and Interview for Removal of 
Condition.--Section 216(c)(1)(B) of the Immigration and Nationality Act 
(8 U.S.C. 1186a(a)(1)) is amended by inserting ``or serving in the 
Armed Forces at the time of the interview'' after ``deceased''.

SEC. 4. FACTORS TO CONSIDER IN INITIATING REMOVAL PROCEEDINGS AGAINST 
              ACTIVE DUTY MILITARY PERSONNEL OR VETERANS.

    Section 239 of the Immigration and Nationality Act (8 U.S.C. 1229a) 
is amended by adding at the end the following:
    ``(f)(1) A notice to appear shall not be issued against an alien 
who served honorably at any time in the Armed Forces of the United 
States, and who, if separated from such service, separated under 
honorable conditions, without prior approval from the Director of the 
United States Citizenship and Immigration Services or the Assistant 
Secretary of Homeland Security for U.S. Immigration and Customs 
Enforcement.
    ``(2) In determining whether to issue a notice to appear against 
such an alien, the Director or the Assistant Secretary shall consider 
the alien's eligibility for naturalization under section 328 or 329, as 
well as the alien's record of military service, grounds of 
deportability applicable to the alien, and any hardship to the Armed 
Services, the alien, and his or her family if the alien were to be 
placed in removal proceedings.
    ``(3) An alien who served honorably at any time in the Armed Forces 
of the United States, and who, if separated from such service, 
separated under honorable conditions, shall not be removed from the 
United States under subparagraph (A)(i) or (B)(iii) of section 
235(b)(1), section 238, or section 241(a)(5).''.

SEC. 5. DISCRETIONARY RELIEF FOR ACTIVE DUTY MILITARY PERSONNEL, 
              VETERANS, AND FAMILY MEMBERS IN REMOVAL PROCEEDINGS.

    (a) Grounds of Inadmissibility.--Section 212 of the Immigration and 
Nationality Act (8 U.S.C. 1182) is amended by inserting after 
subsection (b) the following:
    ``(c) Military Service Personnel and Family Members.--
            ``(1) In general.--With respect to an alien who served 
        honorably at any time in the Armed Forces of the United States, 
        and who, if separated from such service, separated under 
        honorable conditions, or an alien who is the spouse, child, 
        son, daughter, parent, or minor sibling of a member serving in 
        the Armed Forces of the United States--
                    ``(A) paragraphs (4), (5), (6)(A), (7)(A), and 
                (9)(B) of subsection (a) shall not apply;
                    ``(B) the Secretary of Homeland Security, or the 
                Attorney General, shall not waive--
                            ``(i) subsection (a)(2)(B), if the alien 
                        actually was incarcerated for 5 years or more 
                        for the offenses described in such subsection;
                            ``(ii) subparagraph (C), (D), (G), or (H) 
                        of subsection (a)(2);
                            ``(iii) subparagraph (A), (B), (C), (E), or 
                        (F) of subsection (a)(3);
                            ``(iv) subsection (a)(6)(E);
                            ``(v) subparagraph (A) or (C) of subsection 
                        (a)(10); or
                            ``(vi) subsection (a)(10)(D), if the alien 
                        has received a conviction, award, compromise, 
                        settlement, or injunction for an offense 
                        described in clause (i) of such subsection, and 
                        if the court finds that the alien did not 
                        reasonably believe at the time such violation 
                        that the alien was a citizen; and
                    ``(C) the Secretary of Homeland Security, or the 
                Attorney General, may waive any other provision of 
                subsection (a).
            ``(2) Waiver factors.--In making a determination under 
        paragraph (1)(C), the following factors may be considered:
                    ``(A) The grounds of inadmissibility applicable to 
                the alien.
                    ``(B) The alien's service in the United States 
                military, or the degree to which the alien's removal 
                would affect a close family member who is serving or 
                has served in the Armed Forces.
                    ``(C) The length of time the alien has lived in the 
                United States.
                    ``(D) The degree to which the alien would be 
                impacted by his or her removal from the United States.
                    ``(E) The existence of close family ties within the 
                United States.
                    ``(F) The degree to which the alien's removal would 
                adversely affect the alien's United States citizen, or 
                lawful permanent resident, parents, spouses, children, 
                sons, daughters, or siblings.
                    ``(G) The alien's history of employment in the 
                United States, including whether the alien has been 
                self-employed or has owned a business.
                    ``(H) The degree to which the alien's removal would 
                adversely affect the alien's United States employer or 
                business.
                    ``(I) The degree to which the alien has ties to the 
                alien's community in the United States or has 
                contributed to the Nation through community, volunteer, 
                or other activities.''.
    (b) Grounds of Deportability.--Section 237 of the Immigration and 
Nationality Act (8 U.S.C. 1227) is amended by adding at the end the 
following:
    ``(d) Military Service Personnel and Family Members.--
            ``(1) In general.--With respect to an alien who served 
        honorably at any time in the Armed Forces of the United States, 
        and who, if separated from such service, separated under 
        honorable conditions, or an alien who is the spouse, child, 
        son, daughter, parent, or minor sibling of a member serving in 
        the Armed Forces of the United States--
                    ``(A) paragraphs (1)(D), (3)(A), and (5) of 
                subsection (a) shall not apply;
                    ``(B) the Secretary of Homeland Security, or the 
                Attorney General, shall not waive--
                            ``(i) subsection (a)(1)(E);
                            ``(ii) subsection (a)(2)(A)(ii), if the 
                        alien actually was incarcerated for 5 years or 
                        more for the offenses described in such 
                        subsection;
                            ``(iii) subsection (a)(2)(A)(iii), if the 
                        aggravated felony involved was an offense 
                        described in subparagraph (A), (B), (C), (D), 
                        (E)(i), (H), (I), (K)(i), (K)(ii), (K)(iii), 
                        (L)(i), (L)(ii), (L)(iii), (M)(ii), (R), (S), 
                        or (U) of section 101(a)(43);
                            ``(iv) clause (iv) or (v) of subsection 
                        (a)(2)(A);
                            ``(v) clause (i) or (ii) of subsection 
                        (a)(2)(D);
                            ``(vi) subsection (a)(2)(D)(iii), if the 
                        offense is a violation of the Trading With the 
                        Enemy Act;
                            ``(vii) subsection (a)(2)(D)(iv), if the 
                        offense is a violation of section 278;
                            ``(viii) subparagraph (A), (B), (C)(i), 
                        (D), or (E) of subsection (a)(4); or
                            ``(ix) subsection (a)(6)(A), if the alien 
                        has received a conviction, award, compromise, 
                        settlement, or injunction for an offense 
                        described in such subsection, and if the court 
                        finds that the alien did not reasonably believe 
                        at the time such violation that the alien was a 
                        citizen; and
                    ``(C) the Secretary of Homeland Security, or the 
                Attorney General, may waive any other provision of 
                subsection (a).
            ``(2) Waiver factors.--In making a determination under 
        paragraph (1)(C), the following factors may be considered:
                    ``(A) The grounds of deportability applicable to 
                the alien.
                    ``(B) The alien's service in the United States 
                military, or the degree to which the alien's removal 
                would affect a close family member who is serving or 
                has served in the Armed Forces.
                    ``(C) The length of time the alien has lived in the 
                United States.
                    ``(D) The degree to which the alien would be 
                impacted by his or her removal from the United States.
                    ``(E) The existence of close family ties within the 
                United States.
                    ``(F) The degree to which the alien's removal would 
                adversely affect the alien's United States citizen, or 
                lawful permanent resident, parents, spouses, children, 
                sons, daughters, or siblings.
                    ``(G) The alien's history of employment in the 
                United States, including whether the alien has been 
                self-employed or has owned a business.
                    ``(H) The degree to which the alien's removal would 
                adversely affect the aliens United States employer or 
                business.
                    ``(I) The degree to which the alien has ties to the 
                alien's community in the United States or has 
                contributed to the Nation through community, volunteer, 
                or other activities.''.

SEC. 6. TIMELY REUNIFICATION OF MILITARY PERSONNEL AND THEIR NUCLEAR 
              FAMILIES.

    Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 
1151(b)(1)) is amended by adding at the end the following:
            ``(F) Aliens who are eligible for an immigrant visa under 
        paragraph (2)(A) of section 203(a) and are either the spouse or 
        child of an alien who is serving in the Armed Forces of the 
        United States.''.

SEC. 7. RELIEF FOR IMMEDIATE FAMILY MEMBERS OF ACTIVE DUTY PERSONNEL.

    (a) In General.--The Secretary of Homeland Security shall adjust 
the status of an alien described in subsection (b) to that of an alien 
lawfully admitted for permanent residence if the alien--
            (1) applies for such adjustment, and is physically present 
        in the United States on the date the application is filed;
            (2) is admissible to the United States as an immigrant, 
        except as provided in subsection (d); and
            (3) pays a fee, as determined by the Secretary, for the 
        processing of such application.
    (b) Eligible Aliens.--
            (1) In general.--The benefits provided in subsection (a) 
        shall apply only to an alien who is a parent, spouse, child, 
        son or daughter, or minor sibling of an eligible member of the 
        Armed Forces, as defined in subsection (c).
            (2) Posthumous benefits.--An alien described in paragraph 
        (1) shall continue to be eligible for adjustment under this 
        section for 2 years after the death of an eligible member of 
        the Armed Forces whose death was the result of injury or 
        disease incurred in or aggravated by his or her service in the 
        Armed Forces.
    (c) Eligible Members of the Armed Forces.--In this section, 
``eligible member of the Armed Forces'' means any person who--
            (1) is serving or has served honorably as a member of the 
        Selected Reserve of the Ready Reserve or in an active-duty 
        status in the military, air, or naval forces of the United 
        States during a period beginning February 28, 1961, and ending 
        on a date designated by the President by Executive order as of 
        the date of termination of the Vietnam hostilities, or 
        thereafter during any other period which the President by 
        Executive order shall designate as a period in which Armed 
        Forces of the United States are or were engaged in military 
        operations involving armed conflict with a hostile foreign 
        force; and
            (2) if separated from the service described in paragraph 
        (1), was separated under honorable conditions.
    (d) Waiver of Certain Grounds of Inadmissibility.--For the purpose 
of adjustment of status under this section:
            (1) Paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of 
        section 212(a) of the Immigration and Nationality Act (8 U.S.C. 
        1182(a)) shall not apply.
            (2) The Secretary of Homeland Security, or the Attorney 
        General, shall not waive the following provisions of section 
        212 of the Immigration and Nationality Act (8 U.S.C. 1182):
                    (A) Subsection (a)(2)(B), if the alien actually was 
                incarcerated for 5 years or more for the offenses 
                described in such subsection.
                    (B) Subparagraph (C), (D), (G), or (H) of 
                subsection (a)(2).
                    (C) Subparagraph (A), (B), (C), (E), or (F) of 
                subsection (a)(3).
                    (D) Subsection (a)(6)(E).
                    (E) Subparagraph (A) or (C) of subsection (a)(10).
                    (F) Subsection (a)(10)(D), if the alien has 
                received a conviction, award, compromise, settlement, 
                or injunction for an offense described in clause (i) of 
                such subsection, and if the court finds that the alien 
                did not reasonably believe at the time such violation 
                that the alien was a citizen.
            (3) The Secretary of Homeland Security, or the Attorney 
        General, may waive any other provision of section 212(a) of the 
        Immigration and Nationality Act (8 U.S.C. 1182(a)) for 
        humanitarian purposes, to assure family unity, or when it is 
        otherwise in the public interest.
                                                 

Summary: Lance Corporal Jose Gutierrez Act of 2008 - States that any person who served honorably as a member of the US Armed Forces in support of contingency operations shall be eligible for naturalization as if the person had served during a period of presidentially-designated military hostilities. Amends the Immigration and Nationality Act to extend the period for filing a naturalization application to one year after completion of eligible military service. Permits a conditional permanent resident alien who is a member of the Selected Reserve or an active-duty member of the Armed Forces to file the petition to remove conditional status during the six month period after service discharge. Exempts a US citizen soldier who is married to a conditional permanent residents from having to appear at an in-person interview for their spouses' removal of conditional status. Sets forth factors to be considered in initiating removal proceedings against active duty members of the Armed Forces or veterans. Prohibits removal of an alien who is a member or veteran of the Armed Forces based upon: (1) illegal reentry, (2) expedited removal for commission of certain crimes. Or (3) inspection for admissions or asylum. Exempts from specified grounds of inadmissibility or deportation an alien who is: (1) a member of the Armed Forces who has served honorably. (2) a veteran of the Armed Forces who separated under honorable conditions. (3) the spouse, child, son, daughter, parent, or minor sibling of a member of the Armed Forces. Authorizes the Secretary of Homeland Security or the Attorney General to waive other grounds for such removal. Sets forth waiver factors. Exempts from worldwide immigrant visa numerical limitations an alien who is eligible for a family-sponsored immigrant visa and is either the spouse or child of a permanent resident alien who is serving in the Armed Forces. Directs the Secretary to adjust to permanent resident status an alien who is a parent, spouse, child, son or daughter, or minor sibling of a person who is serving or has served in the Armed Forces honorably during the period beginning February 28, 1961, and ending on a date presidentially-designated as the date of termination of the Vietnam hostilities, or thereafter during any presidentially-designated period of military hostilities. Permits posthumous benefits under specified circumstances. Waives certain grounds of inadmissibility.