II 

116TH CONGRESS 

1ST SESSION S. 166 

To provide provisional protected presence status for certain aliens and to 

provide mandatory appropriations relating to border security. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 16, 2019 

Mr. GRAHAM introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To provide provisional protected presence status for certain 

aliens and to provide mandatory appropriations relating 

to border security. 

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

3 SECTION 1. PROVISIONAL PROTECTED PRESENCE. 

4 (a) IN GENERAL.—Chapter 4 of title II of the Immi5 gration and Nationality Act (8 U.S.C. 1221 et seq.) is 

6 amended by adding at the end the following: 

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

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

9 ‘‘(1) DACA RECIPIENT.—The term ‘DACA re10 cipient’ means an alien who is in deferred action staVerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166

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1 tus on the date of the enactment of this section pur2 suant to the Deferred Action for Childhood Arrivals 

3 (‘DACA’) Program announced on June 15, 2012. 

4 ‘‘(2) FELONY.—The term ‘felony’ means a Fed5 eral, State, or local criminal offense (excluding a 

6 State or local offense for which an essential element 

7 was the alien’s immigration status) punishable by 

8 imprisonment for a term exceeding one year. 

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

10 means a Federal, State, or local criminal offense 

11 (excluding a State or local offense for which an es12 sential element was the alien’s immigration status, a 

13 significant misdemeanor, and a minor traffic of14 fense) for which— 

15 ‘‘(A) the maximum term of imprisonment 

16 is greater than five days and not greater than 

17 one year; and 

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

19 in custody of 90 days or less. 

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

21 the Secretary of Homeland Security. 

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

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

24 local criminal offense (excluding a State or local of25 fense for which an essential element was the alien’s 


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1 immigration status) for which the maximum term of 

2 imprisonment is greater than five days and not 

3 greater than one year that— 

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

5 a crime of domestic violence (as defined in sec6 tion 237(a)(2)(E)(i)) or an offense of sexual 

7 abuse or exploitation, burglary, unlawful posses8 sion or use of a firearm, drug distribution or 

9 trafficking, or driving under the influence if the 

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

11 the operation of a motor vehicle and a finding 

12 of impairment or a blood alcohol content of .08 

13 or higher; or 

14 ‘‘(B) resulted in a sentence of time in cus15 tody of more than 90 days, excluding an offense 

16 for which the sentence was suspended. 

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

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

19 is— 

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

21 or 

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

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

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


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

2 which an element was participation in a crimi3 nal street gang (as defined in section 521(a) of 

4 title 18, United States Code); or 

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

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

7 Comprehensive Drug Abuse Prevention and 

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

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

10 ‘‘(1) shall grant provisional protected presence 

11 to an alien who files an application demonstrating 

12 that he or she meets the eligibility criteria under 

13 subsection (c) and pays the appropriate application 

14 fee; 

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

16 United States during the period in which such provi17 sional protected presence is in effect unless such sta18 tus is rescinded pursuant to subsection (g); and 

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

20 authorization. 

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

22 provisional protected presence under this section and em23 ployment authorization if the alien— 

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


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1 ‘‘(2) entered the United States before attaining 

2 16 years of age; 

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

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

5 alien files an application under this section; 

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

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

8 the alien files an application under this section; 

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

10 States on June 15, 2012; 

11 ‘‘(6) on the date on which the alien files an ap12 plication for provisional protected presence— 

13 ‘‘(A) is enrolled in school or in an edu14 cation program assisting students in obtaining 

15 a regular high school diploma or its recognized 

16 equivalent under State law, or in passing a gen17 eral educational development exam or other 

18 State-authorized exam; 

19 ‘‘(B) has graduated or obtained a certifi20 cate of completion from high school; 

21 ‘‘(C) has obtained a general educational 

22 development certificate; or 

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

24 the Coast Guard or Armed Forces of the 

25 United States; 


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1 ‘‘(7) has not been convicted of— 

2 ‘‘(A) a felony; 

3 ‘‘(B) a significant misdemeanor; or 

4 ‘‘(C) three or more misdemeanors not oc5 curring on the same date and not arising out of 

6 the same act, omission, or scheme of mis7 conduct; 

8 ‘‘(8) is a DACA recipient; and 

9 ‘‘(9) does not otherwise pose a threat to na10 tional security or a threat to public safety. 

11 ‘‘(d) DURATION OF PROVISIONAL PROTECTED PRES12 ENCE AND EMPLOYMENT AUTHORIZATION.—Provisional 

13 protected presence and the employment authorization pro14 vided under this section shall be effective until the date 

15 that is three years after the date of the enactment of this 

16 section. 

17 ‘‘(e) STATUS DURING PERIOD OF PROVISIONAL PRO18 TECTED PRESENCE.— 

19 ‘‘(1) IN GENERAL.—An alien granted provi20 sional protected presence is not considered to be un21 lawfully present in the United States during the pe22 riod beginning on the date such status is granted 

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

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

25 of provisional protected presence under this section 


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1 does not excuse previous or subsequent periods of 

2 unlawful presence. 

3 ‘‘(f) APPLICATION.— 

4 ‘‘(1) AGE REQUIREMENT.— 

5 ‘‘(A) IN GENERAL.—An alien who has 

6 never been in removal proceedings, or whose 

7 proceedings have been terminated before mak8 ing a request for provisional protected presence, 

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

10 which the alien submits an application under 

11 this section. 

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

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

14 an alien who, on the date on which the alien ap15 plies for provisional protected presence, is in re16 moval proceedings, has a final removal order, or 

17 has a voluntary departure order. 

18 ‘‘(2) APPLICATION FEE.— 

19 ‘‘(A) IN GENERAL.—The Secretary may re20 quire aliens applying for provisional protected 

21 presence and employment authorization under 

22 this section to pay a reasonable fee that is com23 mensurate with the cost of processing the appli24 cation. 


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

2 exempted from paying the fee required under 

3 subparagraph (A) if the alien— 

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

5 age; 

6 ‘‘(II) received total income during the 

7 12-month period immediately preceding the 

8 date on which the alien files an application 

9 under this section that is less than 150 

10 percent of the United States poverty level; 

11 and 

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

13 lacking any parental or other familial sup14 port; 

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

16 and is homeless; 

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

18 herself because of a serious, chronic dis19 ability; and 

20 ‘‘(II) received total income during the 

21 12-month period immediately preceding the 

22 date on which the alien files an application 

23 under this section that is less than 150 

24 percent of the United States poverty level; 

25 or 


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

2 alien files an application under this sec3 tion, has accumulated $10,000 or more in 

4 debt in the past 12 months as a result of 

5 unreimbursed medical expenses incurred by 

6 the alien or an immediate family member 

7 of the alien; and 

8 ‘‘(II) received total income during the 

9 12-month period immediately preceding the 

10 date on which the alien files an application 

11 under this section that is less than 150 

12 percent of the United States poverty level. 

13 ‘‘(3) REMOVAL STAYED WHILE APPLICATION

14 PENDING.—The Secretary may not remove an alien 

15 from the United States who appears prima facie eli16 gible for provisional protected presence while the 

17 alien’s application for provisional protected presence 

18 is pending. 

19 ‘‘(4) ALIENS NOT IN IMMIGRATION DETEN20 TION.—An alien who is not in immigration deten21 tion, but who is in removal proceedings, is the sub22 ject of a final removal order, or is the subject of a 

23 voluntary departure order, may apply for provisional 

24 protected presence under this section if the alien apVerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166

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1 pears prima facie eligible for provisional protected 

2 presence. 

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

4 The Secretary shall provide any alien in immigration 

5 detention, including any alien who is in removal pro6 ceedings, is the subject of a final removal order, or 

7 is the subject of a voluntary departure order, who 

8 appears prima facie eligible for provisional protected 

9 presence, upon request, with a reasonable oppor10 tunity to apply for provisional protected presence 

11 under this section. 

12 ‘‘(6) CONFIDENTIALITY.— 

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

14 protect information provided in applications for 

15 provisional protected presence under this sec16 tion and in requests for consideration of DACA 

17 from disclosure to U.S. Immigration and Cus18 toms Enforcement and U.S. Customs and Bor19 der Protection for the purpose of immigration 

20 enforcement proceedings. 

21 ‘‘(B) REFERRALS PROHIBITED.—The Sec22 retary may not refer individuals whose cases 

23 have been deferred pursuant to DACA or who 

24 have been granted provisional protected presVerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166

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1 ence under this section to U.S. Immigration 

2 and Customs Enforcement. 

3 ‘‘(C) LIMITED EXCEPTION.—The informa4 tion submitted in applications for provisional 

5 protected presence under this section and in re6 quests for consideration of DACA may be 

7 shared with national security and law enforce8 ment agencies— 

9 ‘‘(i) for assistance in the consideration 

10 of the application for provisional protected 

11 presence; 

12 ‘‘(ii) to identify or prevent fraudulent 

13 claims; 

14 ‘‘(iii) for national security purposes; 

15 and 

16 ‘‘(iv) for the investigation or prosecu17 tion of any felony not related to immigra18 tion status. 

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

20 later than 60 days after the date of the enactment 

21 of this section, the Secretary shall begin accepting 

22 applications for provisional protected presence and 

23 employment authorization. 

24 ‘‘(g) RESCISSION OF PROVISIONAL PROTECTED

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


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1 provisional protected presence or employment authoriza2 tion granted under this section unless the Secretary deter3 mines that the alien— 

4 ‘‘(1) has been convicted of— 

5 ‘‘(A) a felony; 

6 ‘‘(B) a significant misdemeanor; or 

7 ‘‘(C) three or more misdemeanors not oc8 curring on the same date and not arising out of 

9 the same act, omission, or scheme of mis10 conduct; 

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

12 threat to public safety; 

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

14 without authorization from the Secretary; or 

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

16 United States. 

17 ‘‘(h) TREATMENT OF BRIEF, CASUAL, AND INNO18 CENT DEPARTURES AND CERTAIN OTHER ABSENCES.— 

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

20 shall not be considered to have failed to continuously re21 side in the United States due to— 

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

23 the United States during the period beginning on 

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


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

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

3 by the Secretary. 

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

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

6 conviction shall not automatically be treated as a disquali7 fying felony, significant misdemeanor, or misdemeanor, 

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

9 to the nature and severity of the offense to determine 

10 whether, under the particular circumstances, the alien 

11 should be eligible for provisional protected presence under 

12 this section. 

13 ‘‘(j) EFFECT OF DEFERRED ACTION UNDER DE14 FERRED ACTION FOR CHILDHOOD ARRIVALS PROGRAM.— 

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

16 DACA recipient is deemed to have provisional pro17 tected presence under this section through the expi18 ration date of the alien’s deferred action status, as 

19 specified by the Secretary in conjunction with the 

20 approval of the alien’s DACA application. 

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

22 DACA recipient has been granted employment au23 thorization by the Secretary in addition to deferred 

24 action, the employment authorization shall continue 

25 through the expiration date of the alien’s deferred 


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1 action status, as specified by the Secretary in con2 junction with the approval of the alien’s DACA ap3 plication. 

4 ‘‘(3) EFFECT OF APPLICATION.—If a DACA re5 cipient files an application for provisional protected 

6 presence under this section not later than the expi7 ration date of the alien’s deferred action status, as 

8 specified by the Secretary in conjunction with the 

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

10 provisional protected presence, and any employment 

11 authorization, shall remain in effect pending the ad12 judication of such application.’’. 

13 ‘‘SEC. 244B. RENEWABLE PROVISIONAL PROTECTED PRES14 ENCE. 

15 ‘‘(a) IN GENERAL.—The Secretary of Homeland Se16 curity (referred to in this section as the ‘Secretary’) shall 

17 grant provisional protected presence, for a period of 3 

18 years and renewable indefinitely, to an alien who— 

19 ‘‘(1) submits an application for such status to 

20 the Secretary not later than 21 years after the first 

21 day on which applications for such status are accept22 ed; 

23 ‘‘(2) is admissible as an immigrant under this 

24 Act at the time of examination for such status, ex25 cept that in the determination of the alien’s admissiVerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166

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1 bility for purposes of this section, the Secretary shall 

2 apply the terms of section 244(c)(2)(A); 

3 ‘‘(3) was granted temporary protected status or 

4 deferred enforced departure on or before October 1, 

5 2017; 

6 ‘‘(4) has been continuously physically present in 

7 the United States for a period of not less than 5 

8 years immediately preceding the date of the enact9 ment of this section; and 

10 ‘‘(5) has not been convicted of— 

11 ‘‘(A) a felony; nor 

12 ‘‘(B) 2 or more misdemeanors not occur13 ring on the same date and not arising out of 

14 the same act, omission, or scheme of mis15 conduct. 

16 ‘‘(b) PROCEDURES.—The Secretary shall establish a 

17 procedure allowing eligible individuals to apply for the re18 lief available under this section without requiring place19 ment in removal proceedings. Such procedure shall provide 

20 for the ability of a minor to apply for such relief, including 

21 through a legal guardian or counsel. 

22 ‘‘(c) APPLICATION FEE.—The Secretary may require 

23 an alien applying for provisional protected presence under 

24 this section to pay a reasonable fee that is commensurate 

25 with the cost of processing the application. 


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1 ‘‘(d) SUBMISSION OF BIOMETRIC AND BIOGRAPHIC

2 DATA.—The Secretary may not grant an alien provisional 

3 protected presence under this section unless the alien sub4 mits biometric and biographic data, in accordance with 

5 procedures established by the Secretary. The Secretary 

6 shall provide an alternative procedure for aliens who are 

7 unable to provide such biometric or biographic data be8 cause of a physical impairment. 

9 ‘‘(e) BACKGROUND CHECKS.— 

10 ‘‘(1) REQUIREMENT FOR BACKGROUND

11 CHECKS.—The Secretary shall use biometric, bio12 graphic, and other data that the Secretary deter13 mines appropriate— 

14 ‘‘(A) to conduct security and law enforce15 ment background checks of an alien seeking 

16 provisional protected presence under this sec17 tion; and 

18 ‘‘(B) to determine whether there is any 

19 criminal, national security, or other factor that 

20 would render the alien ineligible for such status. 

21 ‘‘(2) COMPLETION OF BACKGROUND CHECKS.— 

22 The security and law enforcement background 

23 checks of an alien required under paragraph (1) 

24 shall be completed, to the satisfaction of the Sec25 retary, before the date on which the Secretary 


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1 grants such alien provisional protected presence 

2 under this section. 

3 ‘‘(3) CRIMINAL RECORDS REQUESTS.—The Sec4 retary, in cooperation with the Secretary of State, 

5 shall seek to obtain information about any criminal 

6 activity the alien engaged in, or for which the alien 

7 was convicted in his or her country of nationality, 

8 country of citizenship, or country of last habitual 

9 residence, from INTERPOL, EUROPOL, or any 

10 other international or national law enforcement 

11 agency of the alien’s country of nationality, country 

12 of citizenship, or country of last habitual residence. 

13 ‘‘(f) TREATMENT OF BRIEF, CASUAL, AND INNOCENT

14 DEPARTURES.—For purposes of subsection (a)(4), an 

15 alien shall not be considered to have failed to maintain 

16 continuous residence in the United States by virtue of 

17 brief, casual, and innocent absences from the United 

18 States.’’. 

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

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

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

22 section 244 the following: 

‘‘Sec. 244A. Provisional protected presence. 

‘‘Sec. 244B. Renewable provisional protected presence.’’. 


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1 SEC. 2. MANDATORY APPROPRIATIONS. 

2 (a) IN GENERAL.—Notwithstanding any other provi3 sion of law, out of any funds in the Treasury not otherwise 

4 appropriated, the Secretary of the Treasury shall transfer 

5 to the Secretary of Homeland Security and the Attorney 

6 General, as applicable, to remain available until ex7 pended— 

8 (1) $5,700,000,000 for U.S. Customs and Bor9 der Protection for procurement, construction, and 

10 improvements; 

11 (2) $800,000,000 for urgent humanitarian 

12 needs to ensure the well-being of individuals taken 

13 into the custody of U.S. Customs and Border Pro14 tection, including for enhanced medical support, 

15 transportation, consumable supplies, and additional 

16 temporary facilities for processing and short-term 

17 custody of vulnerable aliens; 

18 (3) $563,000,000 for the Executive Office for 

19 Immigration Review to hire not fewer than 75 addi20 tional immigration judges and support staff to re21 duce the backlog of cases pending before the Execu22 tive Office for Immigration Review; and 

23 (4) $211,000,000 to hire not fewer than 750 

24 additional Border Patrol Agents to safeguard and 

25 secure the international borders of the United 

26 States. 


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1 (b) RECEIPT AND ACCEPTANCE.—The Secretary of 

2 Homeland Security and the Attorney General, as applica3 ble, shall be entitled to receive, shall accept, and shall use 

4 the funds transferred under subsection (a) for the pur5 poses described in that subsection, without further appro6 priation. 

Æ 


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