99–006 

112TH CONGRESS REPT. 112–141 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

TO AMEND THE IMMIGRATION AND NATIONALITY ACT TO TOLL, DURING 

ACTIVE-DUTY SERVICE ABROAD IN THE ARMED FORCES, THE PERIODS 

OF TIME TO FILE A PETITION AND APPEAR FOR AN INTERVIEW TO REMOVE THE CONDITIONAL BASIS FOR PERMANENT RESIDENT STATUS, 

AND FOR OTHER PURPOSES 

JULY 8, 2011.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SMITH of Texas, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany H.R. 398] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 398) to amend the Immigration and Nationality Act to toll, 

during active-duty service abroad in the Armed Forces, the periods 

of time to file a petition and appear for an interview to remove the 

conditional basis for permanent resident status, and for other purposes, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 1 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 3 

Committee Consideration ........................................................................................ 3 

Committee Votes ...................................................................................................... 3 

Committee Oversight Findings ............................................................................... 3 

New Budget Authority and Tax Expenditures ...................................................... 3 

Congressional Budget Office Cost Estimate .......................................................... 3 

Performance Goals and Objectives ......................................................................... 4 

Advisory on Earmarks ............................................................................................. 4 

Section-by-Section Analysis .................................................................................... 4 

Changes in Existing Law Made by the Bill, as Reported ..................................... 5 

Purpose and Summary 

H.R. 398 tolls the periods during which alien spouses who have 

conditional permanent residence and their U.S. citizen or permanent resident spouses must petition for the removal of the condiVerDate Mar 15 2010 01:26 Jul 09, 2011 Jkt 099006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 E:\HR\OC\HR141P1.XXX HR141P1

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1See section 216(a)(1) of the Immigration and Nationality Act. 2See section 216(c) of the INA. 3See section 216(d)(2) of the INA. 4See section 216(d) of the INA. 5See section 216(d)(3) of the INA. 

tional status and must attend an interview with the Department 

of Homeland Security during any period of time in which either 

spouse is a member of the Armed Forces of the United States and 

serving abroad in active-duty status. 

Background and Need for the Legislation 

A U.S. citizen can sponsor an alien spouse for permanent residence with no numerical limitation. A permanent resident can 

sponsor an alien spouse for permanent residence, but a yearly 

quota exists. In both cases, the alien spouse becomes a conditional 

permanent resident if the marriage was entered into less than 24 

months before the date the alien obtains permanent resident status 

by virtue of such marriage.1

After two years, the alien spouse and the U.S. citizen or permanent resident spouse must jointly file a petition with the Department of Homeland Security (‘‘DHS’’) for the removal of the conditional status.2 If the petition is successful, the alien spouse becomes a permanent resident. The petition must be filed during the 

90-day period before the second anniversary of the spouse’s becoming a conditional permanent resident unless the alien establishes 

to the satisfaction of DHS good cause and extenuating circumstances for failure to file on time.3 Upon the filing of the petition, 

DHS will interview the spouses to ascertain whether the marriage 

was entered into in accordance with the laws of the place where 

it took place, was not judicially annulled or terminated, was not entered into for the purpose of procuring an alien’s admission as an 

immigrant, and whether any improper fee or other consideration 

was given for the filing of an immigrant or certain nonimmigrant 

petitions.4 The interview must be conducted within 90 days of the 

submission of the petition unless DHS waives the deadline for the 

interview or the requirement for the interview.5

What happens in circumstances in which the spouse with conditional permanent residence or the U.S. citizen or permanent resident spouse is serving oversees in active duty status with the 

Armed Forces? It can lead to clear and unnecessary logistical difficulties for the military to have to facilitate a member of the Armed 

Forces deployed overseas being able to file a petition and travel to 

the U.S. for a personal interview with DHS, especially when the 

spouse is serving in a combat zone. It can of course also hinder the 

spouse’s ability to most ably carry out their military duties. While 

DHS can choose to delay this process in appropriate circumstances, 

a blanket tolling of the time periods while a spouse is serving 

abroad is appropriate. 

H.R. 398 tolls the two time periods during any period of time in 

which one or both spouses are members of the Armed Forces of the 

United States and serving abroad in active-duty status. The 

spouses do retain the right to be able to file a petition within the 

normal time period at their choosing and DHS retains the right to 

waive the interview requirement in appropriate circumstances. 


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Hearings 

The Committee on the Judiciary held no hearings on H.R. 398. 

Committee Consideration 

On January 26, 2011, the Committee met in open session and ordered the bill H.R. 398 favorably reported without amendment, by 

a voice vote, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that there were 

no recorded votes during the Committee’s consideration of H.R. 

398. 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 398, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, February 2, 2011. 

Hon. LAMAR SMITH, Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 398, a bill to amend the 

Immigration and Nationality Act to toll, during active-duty service 

abroad in the Armed Forces, the periods of time to file a petition 

and appear for an interview to remove the conditional basis for permanent resident status, and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

DOUGLAS W. ELMENDORF, 

Director. 

Enclosure 


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cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 398—A bill to amend the Immigration and Nationality Act to 

toll, during active-duty service abroad in the Armed Forces, the 

periods of time to file a petition and appear for an interview to 

remove the conditional basis for permanent resident status, and 

for other purposes 

H.R. 398 would extend the period of time available for certain 

members of the U.S. Armed Forces and their spouses to complete 

requirements to gain permanent U.S. residence. This legislation 

would affect a small number of people, and CBO estimates that it 

would have no significant effect on the Federal budget. Because the 

bill could affect direct spending for visa and immigration matters 

and increase the cost of Federal assistance programs, pay-as-yougo procedures apply; however, we estimate that those costs would 

be insignificant. 

H.R. 398 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

The CBO staff contact for this estimate is Mark Grabowicz. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 398 tolls the periods during which alien spouses who have conditional permanent 

residence and their U.S. citizen or permanent resident spouses 

must petition for the removal of the conditional status and must 

attend an interview with DHS during any period in which either 

spouse is a member of the Armed Forces of the United States and 

serving abroad in active-duty status. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 398 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of rule XXI. 

Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Tolling Periods of Time to File Petition and Have Interview for Removal of Condition 

Subsection (a) of section 1 of the bill modifies section 216 of the 

Immigration and Nationality Act to provide that the 90-day period 

for filing a petition to remove the conditional permanent resident 

status of an alien spouse of a U.S. citizen or permanent resident 

shall be tolled during any period of time in which the alien spouse 

or petitioning spouse is a member of the Armed Forces of the 

United States and serving abroad in an active duty status in the 

Armed Forces, except that, at the option of the petitioners, the petiVerDate Mar 15 2010 01:26 Jul 09, 2011 Jkt 099006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR141P1.XXX HR141P1

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tion may be filed during such active-duty service at any time after 

the commencement of such period. 

Subsection (a) also provides that the 90-day period for the personal interview with DHS shall be tolled during any period of time 

in which the alien spouse or petitioning spouse is a member of the 

Armed Forces of the United States and serving abroad in an activeduty status in the Armed Forces, except that this shall not be construed as to prohibit the Secretary of Homeland Security from 

waiving the requirement for an interview pursuant to the Secretary’s authority. 

Subsection (b) of section 1 contains conforming amendments. 

Section 2. Compliance with PAYGO 

Section 2 of the bill provides that the budgetary effects of the 

bill, for the purpose of complying with the Statutory Pay-As-YouGo Act of 2010, shall be determined by reference to the latest statement titled ‘‘Budgetary Effects of PAYGO Legislation’’ for the bill, 

submitted for printing in the Congressional Record by the Chairman of the Committee on the Budget of the House of Representatives provided that such statement has been submitted prior to the 

vote on passage. 

Changes in Existing Law Made by the Bill, as Reported 

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

IMMIGRATION AND NATIONALITY ACT 

* * * * * * * 

TITLE II—IMMIGRATION 

* * * * * * * 

CHAPTER 2—QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL

CONTROL OF CITIZENS AND ALIENS

* * * * * * * 

CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN

SPOUSES AND SONS AND DAUGHTERS

SEC. 216. (a) IN GENERAL.— 

(1) CONDITIONAL BASIS FOR STATUS.—Notwithstanding any 

other provision of this Act, an alien spouse (as defined in subsection ø(g)(1))¿ (h)(1)) and an alien son or daughter (as defined in subsection ø(g)(2))¿ (h)(2)) shall be considered, at the 

time of obtaining the status of an alien lawfully admitted for 

permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section. 

(2) NOTICE OF REQUIREMENTS.— 


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(A) AT TIME OF OBTAINING PERMANENT RESIDENCE.—At 

the time an alien spouse or alien son or daughter obtains 

permanent resident status on a conditional basis under 

paragraph (1), the øAttorney General¿ Secretary of Homeland Security shall provide for notice to such a spouse, son, 

or daughter respecting the provisions of this section and 

the requirements of subsection (c)(1) to have the conditional basis of such status removed. 

(B) AT TIME OF REQUIRED PETITION.—In addition, the 

øAttorney General¿ Secretary of Homeland Security shall 

attempt to provide notice to such a spouse, son, or daughter, at or about the beginning of the 90-day period described in subsection (d)(2)(A), of the requirements of subsections (c)(1). 

(C) EFFECT OF FAILURE TO PROVIDE NOTICE.—The failure 

of the øAttorney General¿ Secretary of Homeland Security 

to provide a notice under this paragraph shall not affect 

the enforcement of the provisions of this section with respect to such a spouse, son, or daughter. 

(b) TERMINATION OF STATUS IF FINDING THAT QUALIFYING MAR- RIAGE IMPROPER.— (1) IN GENERAL.—In the case of an alien with permanent 

resident status on a conditional basis under subsection (a), if 

the øAttorney General¿ Secretary of Homeland Security determines, before the second anniversary of the alien’s obtaining 

the status of lawful admission for permanent residence, that— 

(A) * * * 

* * * * * * * 

the øAttorney General¿ Secretary of Homeland Security shall 

so notify the parties involved and, subject to paragraph (2), 

shall terminate the permanent resident status of the alien (or 

aliens) involved as of the date of the determination. 

(2) HEARING IN REMOVAL PROCEEDING.—Any alien whose permanent resident status is terminated under paragraph (1) may 

request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall 

be on the øAttorney General¿ Secretary of Homeland Security 

to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met. 

(c) REQUIREMENTS OF TIMELY PETITION AND INTERVIEW FOR RE- MOVAL OF CONDITION.— (1) IN GENERAL.—In order for the conditional basis established under subsection (a) for an alien spouse or an alien son 

or daughter to be removed— 

(A) the alien spouse and the petitioning spouse (if not 

deceased) jointly must submit to the øAttorney General¿ 

Secretary of Homeland Security, during the period described in subsection (d)(2), 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), and 

(B) in accordance with subsection (d)(3), the alien spouse 

and the petitioning spouse (if not deceased) must appear 

for a personal interview before an officer or employee of 


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the øService¿ Department of Homeland Security respecting 

the facts and information described in subsection (d)(1). 

(2) TERMINATION OF PERMANENT RESIDENT STATUS FOR FAIL- URE TO FILE PETITION OR HAVE PERSONAL INTERVIEW.— (A) IN GENERAL.—In the case of an alien with permanent 

resident status on a conditional basis under subsection (a), 

if— 

(i) * * * 

* * * * * * * 

the øAttorney General¿ Secretary of Homeland Security 

shall terminate the permanent resident status of the alien 

as of the second anniversary of the alien’s lawful admission for permanent residence. 

* * * * * * * 

(3) DETERMINATION AFTER PETITION AND INTERVIEW.— (A) IN GENERAL.—If— 

(i) * * * 

* * * * * * * 

the øAttorney General¿ Secretary of Homeland Security 

shall make a determination, within 90 days of the date of 

the interview, as to whether the facts and information described in subsection (d)(1) and alleged in the petition are 

true with respect to the qualifying marriage. 

(B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DE- TERMINATION.—If the øAttorney General¿ Secretary of 

Homeland Security determines that such facts and information are true, the øAttorney General¿ Secretary of 

Homeland Security shall so notify the parties involved and 

shall remove the conditional basis of the parties effective 

as of the second anniversary of the alien’s obtaining the 

status of lawful admission for permanent residence. 

(C) TERMINATION IF ADVERSE DETERMINATION.—If the 

øAttorney General¿ Secretary of Homeland Security determines that such facts and information are not true, the 

øAttorney General¿ Secretary of Homeland Security shall 

so notify the parties involved and, subject to subparagraph 

(D), shall terminate the permanent resident status of an 

alien spouse or an alien son or daughter as of the date of 

the deter- mination. 

(D) HEARING IN REMOVAL PROCEEDING.—Any alien whose 

permanent resident status is terminated under subparagraph (C) may request a review of such determination in 

a proceeding to remove the alien. In such proceeding, the 

burden of proof shall be on the øAttorney General¿ Secretary of Homeland Security to establish, by a preponderance 

of the evidence, that the facts and information described in 

subsection (d)(1) and alleged in the petition are not true 

with respect to the qualifying marriage. 

(4) HARDSHIP WAIVER.—The øAttorney General¿ Secretary of 

Homeland Security, in the Attorney General’s discretion, may 

remove the conditional basis of the permanent resident status 

for an alien who fails to meet the requirements of paragraph 

(1) if the alien demonstrates that— 


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(A) * * * 

* * * * * * * 

In determining extreme hardship, the øAttorney General¿ Secretary of Homeland Security shall consider circumstances occurring only during the period that the alien was admitted for 

permanent residence on a conditional basis. In acting on applications under this paragraph, the øAttorney General¿ Secretary of Homeland Security shall consider any credible evidence 

relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall 

be within the sole discretion of the øAttorney General¿ Secretary of Homeland Security.The øAttorney General¿ Secretary of 

Homeland Security shall, by regulation, establish measures to 

protect the confidentiality of information concerning any 

abused alien spouse or child, including information regarding 

the whereabouts of such spouse or child. 

(d) DETAILS OF PETITION AND INTERVIEW.— 

(1) * * * 

(2) PERIOD FOR FILING PETITION.— (A) * * * 

(B) DATE PETITIONS FOR GOOD CAUSE.—Such a petition 

may be considered if filed after such date, but only if the 

alien establishes to the satisfaction of the øAttorney General¿ Secretary of Homeland Security good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A). 

(C) FILING OF PETITIONS DURING REMOVAL.—In the case 

of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the øAttorney General¿ Secretary of Homeland Security may stay such removal proceedings against an alien pending the filing of the petition 

under subparagraph (B). 

(3) PERSONAL INTERVIEW.—The interview under subsection 

(c)(1)(B) shall be conducted within 90 days after the date of 

submitting a petition under subsection (c)(1)(A) and at a local 

office of the øService¿ Department of Homeland Security, designated by the øAttorney General¿ Secretary of Homeland Security, which is convenient to the parties involved. The øAttorney General¿ Secretary of Homeland Security, in the øAttorney 

General’s¿ Secretary’s discretion, may waive the deadline for 

such an interview or the requirement for such an interview in 

such cases as may be appropriate. 

* * * * * * * 

(g) SERVICE IN ARMED FORCES.— 

(1) FILING PETITION.—The 90-day period described in subsection (d)(2)(A) shall be tolled during any period of time in 

which the alien spouse or petitioning spouse is a member of the 

Armed Forces of the United States and serving abroad in an active-duty status in the Armed Forces, except that, at the option 

of the petitioners, the petition may be filed during such activeduty service at any time after the commencement of such 90-day 

period. 


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(2) PERSONAL INTERVIEW.—The 90-day period described in 

the first sentence of subsection (d)(3) shall be tolled during any 

period of time in which the alien spouse or petitioning spouse 

is a member of the Armed Forces of the United States and serving abroad in an active-duty status in the Armed Forces, except 

that nothing in this paragraph shall be construed to prohibit 

the Secretary of Homeland Security from waiving the requirement for an interview under subsection (c)(1)(B) pursuant to the 

Secretary’s authority under the second sentence of subsection 

(d)(3). 

ø(g)¿ (h) DEFINITIONS.—In this section: 

(1) * * * 

* * * * * * * 

Æ 


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