II 

Calendar No. 338 

115TH CONGRESS 

2D SESSION S. 2464 

To improve border security and to provide conditional provision residence 

to certain long-term residents who entered the United States as children. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 27, 2018 

Mr. FLAKE (for himself and Ms. HEITKAMP) introduced the following bill; 

which was read the first time 

FEBRUARY 28, 2018 

Read the second time and placed on the calendar 

A BILL 

To improve border security and to provide conditional provision residence to certain long-term residents who entered 

the United States as children. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Three-Year Border and DACA Extension Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 


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Sec. 1. Short title; table of contents. 

TITLE I—BORDER SECURITY 

Sec. 101. Authorization of appropriations. 

Sec. 102. Operations and support. 

TITLE II—DACA EXTENSION 

Sec. 201. Provisional protected presence for young individuals. 

1 TITLE I—BORDER SECURITY 

2 SEC. 101. AUTHORIZATION OF APPROPRIATIONS. 

3 There is authorized to be appropriated a total of 

4 $7,639,000,000 to the Department of Homeland Security 

5 for fiscal years 2018 through 2020 for the purpose of im6 proving border security. 

7 SEC. 102. OPERATIONS AND SUPPORT. 

8 (a) PURPOSE.—It is the purpose of this section to 

9 establish a Border Security Enforcement Fund (referred 

10 to in this section as the ‘‘Fund’’), to be administered 

11 through the Department of Homeland Security and, in fis12 cal year 2018 only, through the Department of State, to 

13 provide for costs necessary to implement this Act and 

14 other Acts related to border security for activities, includ15 ing— 

16 (1) constructing, installing, deploying, oper17 ating, and maintaining tactical infrastructure and 

18 technology in the vicinity of the United States bor19 der— 

20 (A) to achieve situational awareness and 

21 operational control of the border; and 


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1 (B) to deter, impede, and detect illegal ac2 tivity in high traffic areas; and 

3 (C) to implement other border security 

4 provisions under this section; 

5 (2) implementing port of entry provisions under 

6 this section; 

7 (3) purchasing new aircraft, vessels, spare 

8 parts, and equipment to operate and maintain such 

9 craft; and 

10 (4) hiring and recruitment. 

11 (b) FUNDING.—There are appropriated, to the Fund, 

12 out of any monies in the Treasury not otherwise appro13 priated, a total of $7,639,000,000, as follows: 

14 (1) For fiscal year 2018, $2,947,000,000, to re15 main available through fiscal year 2022. 

16 (2) For fiscal year 2019, $2,225,000,000, to re17 main available through fiscal year 2023. 

18 (3) For fiscal year 2020, $2,467,000,000, to re19 main available through fiscal year 2024. 

20 (c) PHYSICAL BARRIERS.— 

21 (1) IN GENERAL.—In each of the following fis22 cal years, the Secretary of Homeland Security shall 

23 transfer, from the Fund to the U.S. Customs and 

24 Border Protection—Procurement, Construction and 

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1 structing, replacing, or planning physical barriers 

2 along the United States land border, a total of 

3 $5,013,000,000, as follows: 

4 (A) For fiscal year 2018, $1,571,000,000. 

5 (B) For fiscal year 2019, $1,600,000,000. 

6 (C) For fiscal year 2020, $1,842,000,000. 

7 (2) AVAILABILITY OF FUNDS.—Notwith8 standing section 1552(a) of title 31, United States 

9 Code, any amounts obligated for the purposes de10 scribed in paragraph (1) shall remain available for 

11 disbursement until expended. 

12 (d) TRANSFER AUTHORITY.—Other than the 

13 amounts transferred by the Secretary of Homeland Secu14 rity and the Secretary of State pursuant to subsections 

15 (b) and (c), the Committee on Appropriations of the Sen16 ate and the Committee on Appropriations of the House 

17 of Representatives may provide for the transfer of 

18 amounts in the Fund for each fiscal year to eligible activi19 ties under this section, including— 

20 (1) for the purpose of constructing, replacing, 

21 or planning for physical barriers along the United 

22 States land border; or 

23 (2) for any of the activities described in sub24 section (a). 


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1 (e) USE OF FUND.—If the Committee on Appropria2 tions of the Senate and the Committee on Appropriations 

3 of the House of Representatives do not provide for the 

4 transfer of funds in a full-year appropriation in any fiscal 

5 year in accordance with subsection (d), the Secretary of 

6 Homeland Security shall transfer amounts in the Fund 

7 to accounts within the Department of Homeland Security 

8 for eligible activities under this section, including not less 

9 than the amounts specified in subsection (c) for the pur10 pose of constructing, replacing, or planning for physical 

11 barriers along the United States land border. 

12 (f) BUDGET REQUEST.—A request for the transfer 

13 of amounts in the Fund under this section— 

14 (1) shall be included in each budget for a fiscal 

15 year submitted by the President under section 1105 

16 of title 31, United States Code; and 

17 (2) shall detail planned obligations by program, 

18 project, and activity in the receiving account at the 

19 same level of detail provided for in the request for 

20 other appropriations in that account. 

21 (g) REPORTING REQUIREMENT.—At the beginning of 

22 fiscal year 2019, and annually thereafter until the funding 

23 made available under this title has been expended, the Sec24 retary of Homeland Security shall submit a report to the 

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1 fairs of the Senate, the Committee on the Judiciary of the 

2 Senate, the Committee on Homeland Security of the 

3 House of Representatives, and the Committee on the Judi4 ciary of the House of Representatives that describes— 

5 (1) the status of border security in the United 

6 States; and 

7 (2) the amount planned to be expended on bor8 der security during the upcoming fiscal year, broken 

9 down by project and activity. 

10 TITLE II—DACA EXTENSION 

11 SEC. 201. PROVISIONAL PROTECTED PRESENCE FOR 

12 YOUNG INDIVIDUALS. 

13 (a) IN GENERAL.—Chapter 4 of title II of the Immi14 gration and Nationality Act (8 U.S.C. 1221 et seq.) is 

15 amended by adding at the end the following: 

16 ‘‘SEC. 244A. PROVISIONAL PROTECTED PRESENCE. 

17 ‘‘(a) DEFINITIONS.—In this section: 

18 ‘‘(1) DACA RECIPIENT.—- The term ‘DACA 

19 recipient’ means an alien who is in deferred action 

20 status on the date of the enactment of this section 

21 pursuant to the Deferred Action for Childhood Ar22 rivals (‘DACA’) Program announced on June 15, 

23 2012. 

24 ‘‘(2) FELONY.—The term ‘felony’ means a Fed25 eral, State, or local criminal offense (excluding a 


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1 State or local offense for which an essential element 

2 was the alien’s immigration status) punishable by 

3 imprisonment for a term exceeding 1 year. 

4 ‘‘(3) MISDEMEANOR.—The term ‘misdemeanor’ 

5 means a Federal, State, or local criminal offense 

6 (excluding a State or local offense for which an es7 sential element was the alien’s immigration status, a 

8 significant misdemeanor, and a minor traffic of9 fense) for which— 

10 ‘‘(A) the maximum term of imprisonment 

11 is greater than five days and not greater than 

12 1 year; and 

13 ‘‘(B) the individual was sentenced to time 

14 in custody of 90 days or less. 

15 ‘‘(4) SECRETARY.—The term ‘Secretary’ means 

16 the Secretary of Homeland Security. 

17 ‘‘(5) SIGNIFICANT MISDEMEANOR.—The term 

18 ‘significant misdemeanor’ means a Federal, State, or 

19 local criminal offense (excluding a State or local of20 fense for which an essential element was the alien’s 

21 immigration status) for which the maximum term of 

22 imprisonment is greater than 5 days and not greater 

23 than 1 year that— 

24 ‘‘(A) regardless of the sentence imposed, is 

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1 tion 237(a)(2)(E)(i)) or an offense of sexual 

2 abuse or exploitation, burglary, unlawful posses3 sion or use of a firearm, drug distribution or 

4 trafficking, or driving under the influence if the 

5 State law requires, as an element of the offense, 

6 the operation of a motor vehicle and a finding 

7 of impairment or a blood alcohol content of .08 

8 or higher; or 

9 ‘‘(B) resulted in a sentence of time in cus10 tody of more than 90 days, excluding an offense 

11 for which the sentence was suspended. 

12 ‘‘(6) THREAT TO NATIONAL SECURITY.—An 

13 alien is a ‘threat to national security’ if the alien 

14 is— 

15 ‘‘(A) inadmissible under section 212(a)(3); 

16 or 

17 ‘‘(B) deportable under section 237(a)(4). 

18 ‘‘(7) THREAT TO PUBLIC SAFETY.—An alien is 

19 a ‘threat to public safety’ if the alien— 

20 ‘‘(A) has been convicted of an offense for 

21 which an element was participation in a crimi22 nal street gang (as defined in section 521(a) of 

23 title 18, United States Code); or 

24 ‘‘(B) has engaged in a continuing criminal 

25 enterprise (as defined in section 408(c) of the 


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1 Comprehensive Drug Abuse Prevention and 

2 Control Act of 1970 (21 U.S.C. 848(c))). 

3 ‘‘(b) AUTHORIZATION.—The Secretary— 

4 ‘‘(1) shall grant provisional protected presence 

5 to an alien who— 

6 ‘‘(A) files an application demonstrating 

7 that he or she meets the eligibility criteria 

8 under subsection (c); and 

9 ‘‘(B) pays the appropriate application fee; 

10 ‘‘(2) may not remove such alien from the 

11 United States during the period in which such provi12 sional protected presence is in effect unless such sta13 tus is rescinded pursuant to subsection (g); and 

14 ‘‘(3) shall provide such alien with employment 

15 authorization. 

16 ‘‘(c) ELIGIBILITY CRITERIA.—An alien is eligible for 

17 provisional protected presence and employment authoriza18 tion under this section if the alien— 

19 ‘‘(1) was born after June 15, 1981; 

20 ‘‘(2) entered the United States before reaching 

21 16 years of age; 

22 ‘‘(3) continuously resided in the United States 

23 between June 15, 2007, and the date on which the 

24 alien files an application under this section; 


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1 ‘‘(4) was physically present in the United 

2 States on June 15, 2012, and on the date on which 

3 the alien files an application under this section; 

4 ‘‘(5) was unlawfully present in the United 

5 States on June 15, 2012; 

6 ‘‘(6) on the date on which the alien files an ap7 plication for provisional protected presence— 

8 ‘‘(A) is enrolled in school or in an edu9 cation program assisting students in obtaining 

10 a regular high school diploma or its recognized 

11 equivalent under State law, or in passing a gen12 eral educational development exam or other 

13 State-authorized exam; 

14 ‘‘(B) has graduated or obtained a certifi15 cate of completion from high school; 

16 ‘‘(C) has obtained a general educational 

17 development certificate; or 

18 ‘‘(D) is an honorably discharged veteran of 

19 the Coast Guard or Armed Forces of the 

20 United States; 

21 ‘‘(7) has not been convicted of— 

22 ‘‘(A) a felony; 

23 ‘‘(B) a significant misdemeanor; or 

24 ‘‘(C) 3 or more misdemeanors not occur25 ring on the same date and not arising out of 


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1 the same act, omission, or scheme of mis2 conduct; and 

3 ‘‘(8) does not otherwise pose a threat to na4 tional security or a threat to public safety. 

5 ‘‘(d) DURATION OF PROVISIONAL PROTECTED PRES6 ENCE AND EMPLOYMENT AUTHORIZATION.—Provisional 

7 protected presence and employment authorization pro8 vided under this section shall be effective until the date 

9 that is 3 years after the date of the enactment of the 

10 Three-Year Border and DACA Extension Act. 

11 ‘‘(e) STATUS DURING PERIOD OF PROVISIONAL PRO12 TECTED PRESENCE.— 

13 ‘‘(1) IN GENERAL.—An alien granted provi14 sional protected presence is not considered to be un15 lawfully present in the United States during the pe16 riod beginning on the date such status is granted 

17 and ending on the date described in subsection (d). 

18 ‘‘(2) STATUS OUTSIDE PERIOD.—The granting 

19 of provisional protected presence under this section 

20 does not excuse previous or subsequent periods of 

21 unlawful presence. 

22 ‘‘(f) APPLICATION.— 

23 ‘‘(1) AGE REQUIREMENT.— 

24 ‘‘(A) IN GENERAL.—An alien who has 

25 never been in removal proceedings, or whose 


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1 proceedings have been terminated before mak2 ing a request for provisional protected presence, 

3 shall be at least 15 years old on the date on 

4 which the alien submits an application under 

5 this section. 

6 ‘‘(B) EXCEPTION.—The age requirement 

7 set forth in subparagraph (A) shall not apply to 

8 an alien who, on the date on which the alien ap9 plies for provisional protected presence, is in re10 moval proceedings, has a final removal order, or 

11 has a voluntary departure order. 

12 ‘‘(2) APPLICATION FEE.— 

13 ‘‘(A) IN GENERAL.—The Secretary may re14 quire aliens applying for provisional protected 

15 presence and employment authorization under 

16 this section to pay a reasonable fee that is com17 mensurate with the cost of processing the appli18 cation. 

19 ‘‘(B) EXEMPTION.—An applicant may be 

20 exempted from paying the fee required under 

21 subparagraph (A) if the alien— 

22 ‘‘(i)(I) is younger than 18 years of 

23 age; 

24 ‘‘(II) received total income during the 

25 12-month period immediately preceding the 


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1 date on which the alien files an application 

2 under this section that is less than 150 

3 percent of the United States poverty level; 

4 and 

5 ‘‘(III) is in foster care or otherwise 

6 lacking any parental or other familial sup7 port; 

8 ‘‘(ii) is younger than 18 years of age 

9 and is homeless; 

10 ‘‘(iii)(I) cannot care for himself or 

11 herself because of a serious, chronic dis12 ability; and 

13 ‘‘(II) received total income during the 

14 12-month period immediately preceding the 

15 date on which the alien files an application 

16 under this section that is less than 150 

17 percent of the United States poverty level; 

18 or 

19 ‘‘(iv)(I) as of the date on which the 

20 alien files an application under this sec21 tion, has accumulated $10,000 or more in 

22 debt in the past 12 months as a result of 

23 unreimbursed medical expenses incurred by 

24 the alien or an immediate family member 

25 of the alien; and 


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1 ‘‘(II) received total income during the 

2 12-month period immediately preceding the 

3 date on which the alien files an application 

4 under this section that is less than 150 

5 percent of the United States poverty level. 

6 ‘‘(3) REMOVAL STAYED WHILE APPLICATION

7 PENDING.—The Secretary may not remove an alien 

8 from the United States who appears prima facie eli9 gible for provisional protected presence while the 

10 alien’s application for provisional protected presence 

11 is pending. 

12 ‘‘(4) ALIENS NOT IN IMMIGRATION DETEN13 TION.—An alien who is not in immigration deten14 tion, but who is in removal proceedings, is the sub15 ject of a final removal order, or is the subject of a 

16 voluntary departure order, may apply for provisional 

17 protected presence under this section if the alien ap18 pears prima facie eligible for provisional protected 

19 presence. 

20 ‘‘(5) ALIENS IN IMMIGRATION DETENTION.— 

21 The Secretary shall provide any alien in immigration 

22 detention, including any alien who is in removal pro23 ceedings, is the subject of a final removal order, or 

24 is the subject of a voluntary departure order, who 

25 appears prima facie eligible for provisional protected 


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1 presence, upon request, with a reasonable oppor2 tunity to apply for provisional protected presence 

3 under this section. 

4 ‘‘(6) CONFIDENTIALITY.— 

5 ‘‘(A) IN GENERAL.—The Secretary shall 

6 protect information provided in applications for 

7 provisional protected presence under this sec8 tion and in requests for consideration of DACA 

9 from disclosure to U.S. Immigration and Cus10 toms Enforcement and U.S. Customs and Bor11 der Protection for the purpose of immigration 

12 enforcement proceedings. 

13 ‘‘(B) REFERRALS PROHIBITED.—The Sec14 retary may not refer individuals whose cases 

15 have been deferred pursuant to DACA or who 

16 have been granted provisional protected pres17 ence under this section to U.S. Immigration 

18 and Customs Enforcement. 

19 ‘‘(C) LIMITED EXCEPTION.—The informa20 tion submitted in applications for provisional 

21 protected presence under this section and in re22 quests for consideration of DACA may be 

23 shared with national security and law enforce24 ment agencies— 


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1 ‘‘(i) for assistance in the consideration 

2 of the application for provisional protected 

3 presence; 

4 ‘‘(ii) to identify or prevent fraudulent 

5 claims; 

6 ‘‘(iii) for national security purposes; 

7 and 

8 ‘‘(iv) for the investigation or prosecu9 tion of any felony not related to immigra10 tion status. 

11 ‘‘(7) ACCEPTANCE OF APPLICATIONS.—Not 

12 later than 60 days after the date of the enactment 

13 of the Three-Year Border and DACA Extension Act, 

14 the Secretary shall begin accepting applications for 

15 provisional protected presence and employment au16 thorization. 

17 ‘‘(g) RESCISSION OF PROVISIONAL PROTECTED

18 PRESENCE.—The Secretary may not rescind an alien’s 

19 provisional protected presence or employment authoriza20 tion granted under this section unless the Secretary deter21 mines that the alien— 

22 ‘‘(1) has been convicted of— 

23 ‘‘(A) a felony; 

24 ‘‘(B) a significant misdemeanor; or 


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1 ‘‘(C) 3 or more misdemeanors not occur2 ring on the same date and not arising out of 

3 the same act, omission, or scheme of mis4 conduct; 

5 ‘‘(2) poses a threat to national security or a 

6 threat to public safety; 

7 ‘‘(3) has traveled outside of the United States 

8 without authorization from the Secretary; or 

9 ‘‘(4) has ceased to continuously reside in the 

10 United States. 

11 ‘‘(h) TREATMENT OF BRIEF, CASUAL, AND INNO12 CENT DEPARTURES AND CERTAIN OTHER ABSENCES.— 

13 For purposes of subsections (c)(3) and (g)(4), an alien 

14 shall not be considered to have failed to continuously re15 side in the United States due to— 

16 ‘‘(1) brief, casual, and innocent absences from 

17 the United States during the period beginning on 

18 June 15, 2007, and ending on August 14, 2012; or 

19 ‘‘(2) travel outside of the United States on or 

20 after August 15, 2012, if such travel was authorized 

21 by the Secretary. 

22 ‘‘(i) TREATMENT OF EXPUNGED CONVICTIONS.—For 

23 purposes of subsections (c)(7) and (g)(1), an expunged 

24 conviction shall not automatically be treated as a disquali25 fying felony, significant misdemeanor, or misdemeanor, 


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1 but shall be evaluated on a case-by-case basis according 

2 to the nature and severity of the offense to determine 

3 whether, under the particular circumstances, the alien 

4 should be eligible for provisional protected presence under 

5 this section. 

6 ‘‘(j) EFFECT OF DEFERRED ACTION UNDER DE7 FERRED ACTION FOR CHILDHOOD ARRIVALS PROGRAM.— 

8 ‘‘(1) PROVISIONAL PROTECTED PRESENCE.—A 

9 DACA recipient is deemed to have provisional pro10 tected presence under this section through the expi11 ration date of the alien’s deferred action status, as 

12 specified by the Secretary in conjunction with the 

13 approval of the alien’s DACA application. 

14 ‘‘(2) EMPLOYMENT AUTHORIZATION.—If a 

15 DACA recipient has been granted employment au16 thorization by the Secretary in addition to deferred 

17 action, the employment authorization shall continue 

18 through the expiration date of the alien’s deferred 

19 action status, as specified by the Secretary in con20 junction with the approval of the alien’s DACA ap21 plication. 

22 ‘‘(3) EFFECT OF APPLICATION.—If a DACA re23 cipient files an application for provisional protected 

24 presence under this section not later than the expi25 ration date of the alien’s deferred action status, as 


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1 specified by the Secretary in conjunction with the 

2 approval of the alien’s DACA application, the alien’s 

3 provisional protected presence, and any employment 

4 authorization, shall remain in effect pending the ad5 judication of such application.’’. 

6 (b) CLERICAL AMENDMENT.—The table of contents 

7 for the Immigration and Nationality Act (8 U.S.C. 1101 

8 note) is amended by inserting after the item relating to 

9 section 244 the following: 

‘‘Sec. 244A. Provisional protected presence.’’. 


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Calendar No. 338 

115TH CONGRESS 

2D SESSION S. 2464 

A BILL 

To improve border security and to provide condidren. residents who entered the United States as chil- tional provision residence to certain long-term 

FEBRUARY 28, 2018 

Read the second time and placed on the calendar 


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