I 

111TH CONGRESS 

1ST SESSION H. R. 264 

To amend the Immigration and Nationality Act to comprehensively reform 

immigration law, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 7, 2009 

Ms. JACKSON-LEE of Texas introduced the following bill; which was referred 

to the Committee on the Judiciary, and in addition to the Committees 

on Homeland Security and Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Immigration and Nationality Act to comprehensively reform immigration law, and for other purposes. 

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; REFERENCES TO ACT. 

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

5 ‘‘Save America Comprehensive Immigration Act of 2009’’. 

6 (b) REFERENCES TO THE IMMIGRATION AND NA7 TIONALITY ACT.—Except as otherwise expressly provided, 

8 whenever in this Act an amendment or repeal is expressed 


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1 in terms of an amendment to, or repeal of, a section or 

2 other provision, the reference shall be considered to be 

3 made to a section or other provision of the Immigration 

4 and Nationality Act. 

5 TITLE I—FACILITATING FAMILY6 BASED IMMIGRATION 

7 SEC. 101. INCREASING THE ALLOCATION OF FAMILY-BASED 

8 IMMIGRANT VISAS. 

9 Section 201(c) (8 U.S.C. 115(c)) is amended to read 

10 as follows: 

11 ‘‘(c) WORLDWIDE LEVEL OF FAMILY-SPONSORED

12 IMMIGRANTS.—The worldwide level of family-sponsored 

13 immigrants under this subsection for a fiscal year shall 

14 be no more than 960,000.’’. 

15 SEC. 102. PROTECTION AGAINST PROCESSING DELAYS. 

16 (a) AGE-OUT PROTECTION FOR CHILDREN.— 

17 (1) IN GENERAL.—Chapter 1 of title IV (8 

18 U.S.C. 1101 note) is amended by adding at the end 

19 the following: 

20 ‘‘AGE-OUT PROTECTION FOR CHILDREN

21 ‘‘SEC. 408. (a) IN GENERAL.—In the case of an ap22 plication initially to grant a benefit under this Act (other 

23 than an application for naturalization) that otherwise 

24 would be granted only after a determination that the bene25 ficiary of the application is a child (such as classification 

26 as an immediate relative under section 201(b)(2)(A)(i)), 


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1 if the application is neither approved nor denied (on proce2 dural or substantive grounds) during the 90-day period 

3 beginning on the date of the filing of the application, the 

4 beneficiary shall be considered to be a child for all pur5 poses related to the receipt of the benefit if the beneficiary 

6 was a child on the last day of such 90-day period, and 

7 the beneficiary shall not otherwise be prejudiced with re8 spect to such determination by such delay, and shall be 

9 considered to be a child under this Act for all purposes 

10 related to such application. 

11 ‘‘(b) TERMINATION OF BENEFIT.—Subsection (a) 

12 shall remain in effect until the termination of the 1-year 

13 period beginning on the date on which the application de14 scribed in such paragraph is approved.’’. 

15 (2) CLERICAL AMENDMENT.—The table of con16 tents is amended by inserting after the item relating 

17 to section 407 the following: 

‘‘Sec. 408. Age-out protection for children.’’. 

18 (b) TIMELINESS OF ADOPTION FOR IMMIGRATION

19 PURPOSES.— 

20 (1) IN GENERAL.—Section 101(b)(1)(E)(i) (8 

21 U.S.C. 1101(b)(1)(E)(i)) is amended by striking ‘‘a 

22 child adopted while under the age of sixteen years’’ 

23 and inserting ‘‘a child, under the age of 16 when 

24 adoption proceedings were initiated,’’. 


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1 (2) SPECIAL RULE FOR SIBLINGS.—Section 

2 101(b)(1)(E)(ii)(III) (8 U.S.C. 

3 1101(b)(1)(E)(ii)(III)) is amended by striking 

4 ‘‘adopted while under the age of 18 years’’ and in5 serting ‘‘under the age of 18 when adoption pro6 ceedings were initiated’’. 

7 SEC. 103. TEMPORARY STATUS PENDING RECEIPT OF PER8 MANENT RESIDENT STATUS. 

9 (a) CLASSES OF NONIMMIGRANT ALIENS.—Section 

10 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)) is amended— 

11 (1) by striking ‘‘or’’ at the end of clause (ii); 

12 (2) by adding ‘‘or’’ at the end of clause (iii); 

13 and 

14 (3) by adding at the end the following: 

15 ‘‘(iv)(I) has concluded a valid mar16 riage with an alien lawfully admitted for 

17 permanent residence, is the parent of a cit18 izen of the United States, or is the child, 

19 son, or daughter of an alien lawfully ad20 mitted for permanent residence or a citizen 

21 of the United States; (II) is the beneficiary 

22 of an approved petition to accord immi23 grant status on the basis of such family re24 lationship that was filed under section 204 

25 by such family member; (III) has available 


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1 to the alien an immigrant visa number; 

2 (IV) has waited more than 6 months for 

3 the issuance of an immigrant visa based 

4 upon an application made by the alien; and 

5 (V) seeks to enter the United States to 

6 await such issuance;’’. 

7 (b) ADMISSION OF NONIMMIGRANTS.—Section 

8 214(d) (8 U.S.C. 1184(d)) is amended— 

9 (1) by striking ‘‘(d)’’ and inserting ‘‘(d)(1)’’; 

10 and 

11 (2) by adding at the end the following: 

12 SEC. 104. ELIMINATION OF AFFIDAVIT OF SUPPORT RE13 QUIREMENT. 

14 (a) GROUNDS FOR INELIGIBILITY FOR ADMISSION.— 

15 Section 212(a)(4) (8 U.S.C. 1182(a)(4)) is amended— 

16 (1) by amending subparagraph (B)(ii) to read 

17 as follows: 

18 ‘‘(ii) If an alien submits an affidavit of 

19 support described in section 213A, in addition 

20 to the factors under clause (i), the consular of21 ficer or the Attorney General shall also consider 

22 such affidavit in determining whether the alien 

23 is inadmissible under this paragraph.’’; and 

24 (2) by striking subparagraphs (C) and (D). 


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1 (b) REQUIREMENTS FOR SPONSOR’S AFFIDAVIT OF

2 SUPPORT.—Subsections (a)(1)(A), (f)(1)(E), and 

3 (f)(4)(B)(i) of section 213A (8 U.S.C. 1183a(a)(1)(A), 

4 (f)(1)(E), and (f)(4)(B)(i)) are amended by striking 

5 ‘‘125’’ and inserting ‘‘100’’. 

6 ‘‘(2) A visa shall not be issued under the provisions 

7 of section 101(a)(15)(K)(iv) until the consular officer has 

8 received a petition filed in the United States by the lawful 

9 permanent resident or citizen relative of the applying alien 

10 and approved by the Secretary of Homeland Security. The 

11 petition shall be in such form and contain such informa12 tion as the Secretary shall, by regulation, prescribe.’’. 

13 TITLE II—ESTABLISHMENT OF A 

14 BOARD OF VISA APPEALS FOR 

15 FAMILY-BASED VISAS 

16 SEC. 201. ESTABLISHMENT OF A BOARD OF VISA APPEALS. 

17 (a) IN GENERAL.—The Immigration and Nationality 

18 Act is amended by inserting after section 224 the following 

19 new section: 

20 ‘‘BOARD OF VISA APPEALS

21 ‘‘SEC. 225. (a) ESTABLISHMENT.—The Secretary of 

22 State shall establish within the Department of State a 

23 Board of Family-based Visa Appeals. The Board shall be 

24 composed of 5 members who shall be appointed by the 

25 Secretary. Not more than 2 members of the Board may 


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1 be consular officers. The Secretary shall designate a mem2 ber who shall be chairperson of the Board. 

3 ‘‘(b) AUTHORITY AND FUNCTIONS.—The Board shall 

4 have authority to review any discretionary decision of a 

5 consular officer with respect to an alien concerning the 

6 denial, revocation, or cancellation of an immigrant visa of 

7 someone who has the immediate relative status described 

8 in section 201(2)(A)(i) and (ii); or a preference classifica9 tion described in section 203(a). The review of the Board 

10 shall be made upon the record for decision of the consular 

11 officer, including all documents, notes, and memoranda 

12 filed with the consular officer, supplemented by affidavits 

13 and other writings if offered by the consular officer or 

14 alien. Upon a showing that the decision of the consular 

15 official is contrary to the preponderance of the evidence, 

16 the Board shall have authority to overrule, or remand for 

17 further consideration, the decision of such consular officer. 

18 ‘‘(c) PROCEDURE.—Proceedings before the Board 

19 shall be in accordance with such regulations, not incon20 sistent with this Act and sections 556 and 557 of title 

21 5, United States Code, as the Secretary of State shall pre22 scribe. Such regulations shall include requirements that 

23 provide that— 

24 ‘‘(1) at the time of any decision of a consular 

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1 fined in subsection (d) shall be given notice of the 

2 availability of the review process and the necessary 

3 steps to request such review; 

4 ‘‘(2) a written record of the proceedings and de5 cision of the consular officer (in accordance with sec6 tions 556 and 557 of title 5, United States Code) 

7 shall be available to the Board, and on payment of 

8 lawfully prescribed costs, shall be made available to 

9 the alien; 

10 ‘‘(3) upon receipt of request for review under 

11 this section, the Board shall, within 30 days, notify 

12 the consular officer with respect to whose decision 

13 review is sought, and, upon receipt of such notice, 

14 such officer shall promptly (but in no event more 

15 than 30 days after such receipt) forward to the 

16 Board the record of proceeding as described in sub17 section (b); 

18 ‘‘(4) the appellant shall be given notice, reason19 able under all the circumstances of the time and 

20 place at which the Board proceedings will be held; 

21 ‘‘(5) the appellant may be represented (at no 

22 expense to the Government) by such counsel, author23 ized to practice in such proceedings, as the appellant 

24 shall choose; and 


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1 ‘‘(6) a request for review under this section 

2 must be made in writing to the Board within 60 

3 days after receipt of notice of the denial, revocation, 

4 or cancellation. 

5 ‘‘(d) INTERESTED PARTIES.—The Board shall review 

6 each decision described in subsection (b) upon request by 

7 the petitioner of an immigrant visa petition approved 

8 under section 201(2)(A)(i) and (ii) or 203(a). 

9 ‘‘(e) CONSTRUCTION.—This section may not be con10 strued to restrict any right to further administrative or 

11 judicial review established under any other provision of 

12 law. 

13 ‘‘(f) FEES.—The Secretary of State shall charge, and 

14 collect, an appropriate fee associated with a request to the 

15 Board for a review. Such fee shall be sufficient to cover 

16 the cost of the administration of this section.’’. 

17 (b) TECHNICAL AMENDMENTS.— 

18 (1) Section 222(f) (8 U.S.C. 1202(f)) is amend19 ed by adding at the end: ‘‘An interested party under 

20 section 225(d) or court shall be permitted to inspect 

21 the record of proceeding as described in subsections 

22 (c)(2) and (c)(3) of section 225.’’. 

23 (2) Section 104(a)(1) (8 U.S.C. 1104(a)(1)) is 

24 amended by striking the ‘‘except’’ and inserting ‘‘in25 cluding’’. 


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1 (3) The table of contents is amended by insert2 ing after the item relating to section 224 the fol3 lowing new item: 

‘‘Sec. 225. Board of Visa Appeals.’’. 

4 TITLE III—ELIMINATION OF 

5 UNFAIR RESTRICTIONS 

6 SEC. 301. ACQUISITION OF CITIZENSHIP FOR CHILDREN 

7 BORN ABROAD AND OUT OF WEDLOCK TO A 

8 UNITED STATES CITIZEN FATHER. 

9 (a) REQUIREMENTS FOR CITIZENSHIP ELIGI10 BILITY.—Section 309(a) (8 U.S.C. 1409(a)) is amended— 

11 (1) in paragraph (2), by adding ‘‘and’’ at the 

12 end; 

13 (2) by striking paragraph (3); 

14 (3) in paragraph (4), by striking ‘‘while the 

15 person is under the age of 18 years—’’ and inserting 

16 ‘‘at any time—’’; and 

17 (4) by redesignating paragraph (4) as para18 graph (3). 

19 (b) CLARIFICATION REGARDING DECEASED PAR20 ENTS OF CHILDREN BORN ABROAD AND OUT OF WED21 LOCK.—Section 309 (8 U.S.C. 1409) is amended by add22 ing at the end the following: 

23 ‘‘(d) Nothing in this section shall be construed to pre24 clude a person who is a citizen or national of the United 

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1 lishing such status under this title after the death of the 

2 person’s father, mother, or parents.’’. 

3 (c) APPLICATION OF CITIZENSHIP PROVISIONS.— 

4 The amendments made by this Act shall apply to persons 

5 born out of wedlock who are alive on or after the date 

6 of the enactment of this Act. 

7 SEC. 302. ALLOW AUNTS AND UNCLES OR GRANDPARENTS 

8 TO ADOPT ORPHANED OR ABANDONED CHIL9 DREN OF THE DECEASED RELATIVE. 

10 Section 101(b) is amended by— 

11 (1) striking ‘‘or’’ at the end of subparagraph 

12 (E) and inserting a semicolon; 

13 (2) striking the period at the end of subpara14 graph (F) and inserting ‘‘; or’’; and 

15 (3) by inserting the following subparagraph: 

16 ‘‘(G) a child adopted in the United States 

17 or abroad or who is coming to the United 

18 States for adoption by a grandparent, aunt or 

19 uncle while under the age of eighteen years, 

20 who has suffered the death or disappearance of, 

21 abandonment or desertion by, or separation or 

22 loss from, both parents, or for whom the sole or 

23 surviving parent is incapable of providing prop24 er care and has consented in writing to the 

25 adoption, if the Secretary of Homeland Security 


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1 is satisfied that proper care will be furnished 

2 the child if admitted to the United States. No 

3 natural parent or prior adoptive parent of any 

4 such child shall thereafter, by virtue of such 

5 parentage, be accorded any right, privilege, or 

6 status under this Act. Nothing in this sub7 section shall be construed to require the child to 

8 be released to an orphanage as a prerequisite 

9 for eligibility.’’. 

10 SEC. 303. RELIEF FOR SURVIVING SPOUSES, CHILDREN 

11 AND PARENTS. 

12 (a) IN GENERAL.—The second sentence of section 

13 201(b)(2)(A)(i) of the Immigration and Nationality Act 

14 (8 U.S.C. 1151(b)(2)(A)(i)) is amended by striking ‘‘for 

15 at least 2 years’’ and inserting ‘‘, and if married for less 

16 than two years at the time of the citizen’s death proves 

17 by a preponderance of the evidence that the marriage was 

18 entered into in good faith and not solely for the purpose 

19 of obtaining an immigration benefit,’’ after ‘‘within 2 

20 years after such date’’; and by inserting the following sen21 tence after the sentence ending with ‘‘remarries’’: ‘‘In the 

22 case of an alien who was the child or parent of a citizen 

23 of the United States at the time of the citizen’s death, 

24 the alien shall be considered, for purposes of this sub25 section, to remain an immediate relative after the date of 


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1 the citizen’s death but only if the alien files a petition 

2 under section 204(a)(1)(A)(ii), as amended, within two 

3 years after such date in the case of a parent, or prior to 

4 reaching the age of 21 in the case of a child.’’. 

5 (b) PETITION.—Section 204(a)(1)(A)(ii) of the Im6 migration and Nationality Act (8 U.S.C. 

7 1154(a)(1)(A)(ii)) is amended by inserting ‘‘or an alien 

8 child or alien parent described in the third sentence of sec9 tion 201(b)(2)(A)(i)’’ after ‘‘section 201(b)(2)(A)(i)’’. 

10 (c) TRANSITION PERIOD.—In applying section 

11 201(b)(2)(A)(i) of the Immigration and Nationality Act, 

12 as amended, in the case of an alien whose citizen relative 

13 died before the date of the enactment of this Act, the alien 

14 relative may (notwithstanding the deadlines specified in 

15 such subsection) file the classification petition referred to 

16 in such subsection within 2 years after the date of the 

17 enactment of this Act. In the case of an alien who was 

18 excluded, deported, removed or departed voluntarily before 

19 the date of the enactment of this Act, such alien shall be 

20 eligible for parole into the United States pursuant to the 

21 Attorney General’s authority under section 212(d)(5), and 

22 such alien’s application for adjustment of status shall be 

23 considered notwithstanding section 212(a)(9). 


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1 (d) ADJUSTMENT OF STATUS.—Section 245 (8 

2 U.S.C. 1255) of the Immigration and Nationality Act is 

3 amended by adding at the end the following: 

4 ‘‘(n) APPLICATIONS FOR ADJUSTMENT OF STATUS

5 BY SURVIVING SPOUSES, CHILDREN AND PARENTS.— 

6 ‘‘(1) IN GENERAL.—Any alien described in 

7 paragraph (2) who applied for adjustment of status 

8 prior to the death of the qualifying relative, may 

9 have such application adjudicated as if such death 

10 had not occurred. 

11 ‘‘(2) ALIEN DESCRIBED.—An alien described in 

12 this paragraph is an alien who— 

13 ‘‘(A) is an immediate relative as described 

14 in section 201(b)(2)(A)(i); 

15 ‘‘(B) is a family-sponsored immigrant as 

16 described in section 203(a) or (d); 

17 ‘‘(C) is a derivative beneficiary of an em18 ployment-based immigrant under section 

19 203(b), as described in section 203(d); or 

20 ‘‘(D) is a derivative beneficiary of a diver21 sity immigrant as described in section 203(c).’’. 

22 (e) TRANSITION PERIOD.—Notwithstanding a denial 

23 of an application for adjustment of status, in the case of 

24 an alien whose qualifying relative died before the date of 

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1 newed by the alien through a motion to reopen, without 

2 fee, filed within two years after the date of the enactment 

3 of this Act. In the case of an alien who was excluded, de4 ported, removed or departed voluntarily before the date 

5 of the enactment of this Act, such alien shall be eligible 

6 for parole into the United States pursuant to the Attorney 

7 General’s authority under section 212(d)(5), and such 

8 alien’s application for adjustment of status shall be consid9 ered notwithstanding section 212(a)(9). 

10 (f) STATE DEPARTMENT PROCESSING OF IMMIGRANT

11 VISAS.—Section 204(b) of the Immigration and Nation12 ality Act (8 U.S.C. 1154) is amended by adding at the 

13 end the following: 

14 ‘‘(7) EFFECT OF DEATH.— 

15 ‘‘(A) IN GENERAL.—Any alien described in 

16 subparagraph (B) whose qualifying relative died 

17 prior to completion of immigrant visa proc18 essing may have an immigrant visa application 

19 adjudicated as if such death had not occurred, 

20 and any immigrant visa issued prior to the 

21 death of the qualifying relative shall remain 

22 valid. 

23 ‘‘(B) ALIEN DESCRIBED.—An alien de24 scribed in this subparagraph is an alien who— 


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1 ‘‘(i) is an immediate relative as de2 scribed in section 201(b)(2)(A)(i); 

3 ‘‘(ii) is a family-sponsored immigrant 

4 as described in section 203(a) or (d); 

5 ‘‘(iii) is a derivative beneficiary of an 

6 employment-based immigrant under section 

7 203(b), as described in section 203(d); or 

8 ‘‘(iv) is a derivative beneficiary of a 

9 diversity immigrant as described in section 

10 203(c).’’. 

11 (g) TRANSITION PERIOD.—Notwithstanding a denial 

12 or revocation of an application for an immigrant visa, in 

13 the case of an alien whose qualifying relative died before 

14 the date of the enactment of this Act, such application 

15 may be renewed by the alien through a motion to reopen, 

16 without fee, filed within two years after the date of the 

17 enactment of this Act. In the case of an alien who was 

18 excluded, deported, removed or departed voluntarily before 

19 the date of the enactment of this Act, such alien’s applica20 tion for an immigrant visa shall be considered notwith21 standing section 212(a)(9). 

22 (h) NATURALIZATION.—Section 319(a) of the Immi23 gration and Nationality Act (8 U.S.C. 1429(a)) is amend24 ed by inserting ‘‘or, if the spouse is deceased, the spouse 


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1 was a citizen of the United States,’’ after ‘‘(a) Any person 

2 whose spouse is a citizen of the United States,’’. 

3 SEC. 304. ELIMINATING THE WIDOWED PERMANENT RESI4 DENT’S NATURALIZATION PENALTY. 

5 Section 319(a) (8 U.S.C. 1429(a)) is amended by in6 serting ‘‘or, if the spouse is deceased, the spouse was a 

7 citizen of the United States,’’ after ‘‘(a) Any person whose 

8 spouse is a citizen of the United States,’’. 

9 TITLE IV—PREVENTING SEX OF10 FENDERS FROM USING OUR 

11 IMMIGRATION LAWS TO 

12 BRING INNOCENT, 

13 UNSUSPECTING VICTIMS 

14 INTO THE UNITED STATES 

15 SEC. 401. FINDINGS. 

16 The Congress finds the following: 

17 (1) Immigration law allows citizens and aliens 

18 lawfully admitted for permanent residence to bring 

19 foreign family members to the United States on the 

20 basis of immediate relative status or a preference 

21 classification. 

22 (2) Immediate relative status and preference 

23 classifications are obtained by filing petitions with 

24 the Secretary of Homeland Security. 


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1 (3) For national security purposes, the Sec2 retary of Homeland Security conducts background 

3 checks on the beneficiaries of such petitions and, 

4 since September 11, 2001, on the petitioners as well. 

5 (4) The Government Accountability Office 

6 (GAO) has determined that, in fiscal year 2005, at 

7 least 398 of the petitioners who filed family-based 

8 visa petitions were on the National Sex Offender 

9 Registry maintained by the Federal Bureau of In10 vestigations. 

11 (5) GAO was only able to ascertain the nature 

12 of the sex offense for 194 of the 398 petitioners. 

13 (6) GAO was able to ascertain, however, that 

14 119 of the convictions were for sex assault, 35 for 

15 child fondling, 9 for strong arm rape, 9 for carnal 

16 abuse combined with a sexual assault, 7 were for 

17 statutory rape, 4 for crimes against persons, 3 for 

18 indecent exposure, 2 for kidnapping, 2 for obscene 

19 material possession, 1 for exploitation of a minor 

20 with photographs, 1 for incest with a minor, 1 for 

21 sodomizing a boy, and 1 for restricting movement. 

22 (7) At least 14 of the 398 petitioners were clas23 sified as ‘‘sexual predators’’, which means a deter24 mination had been made that they are likely to com25 mit additional sex offenses. 


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1 (8) At least 45 of the petitioners were convicted 

2 of sex offenses against children. 

3 (9) The Immigration and Nationality Act does 

4 not provide the Secretary of Homeland Security with 

5 authorization to deny family-based petitions on the 

6 basis of a petitioner’s conviction for a sex offense, 

7 even when the conviction record indicates that a 

8 spouse or a child beneficiary may be in grave dan9 ger. 

10 SEC. 402. DISCRETIONARY AUTHORITY TO DENY FAMILY11 SPONSORED CLASSIFICATION PETITION BY 

12 PETITIONER LISTED ON NATIONAL SEX OF13 FENDER REGISTRY. 

14 Section 204 of the Immigration and Nationality Act 

15 (8 U.S.C. 1154) is amended by adding at the end the fol16 lowing: 

17 ‘‘(l) AUTHORITY TO DENY FAMILY-BASED PETITION

18 BY PETITIONER LISTED ON NATIONAL SEX OFFENDER

19 REGISTRY.— 

20 ‘‘(1) IN GENERAL.—The Secretary Homeland 

21 Security may, in the discretion of the Secretary, 

22 deny a petition under subsection (a) for classifica23 tion of a spouse or child if— 

24 ‘‘(A) the Secretary has confirmed that the 

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1 istry maintained by the Federal Bureau of In2 vestigation for a conviction that individually 

3 (disregarding any aggregation due to any other 

4 conviction) resulted in incarceration for more 

5 than 1 year; 

6 ‘‘(B) the petitioner has been given at least 

7 90 days to establish that the petitioner is not 

8 the person named on the registry or that the 

9 conviction did not result in incarceration for 

10 more than 1 year and has failed to establish 

11 such fact; and 

12 ‘‘(C) the Secretary finds that granting the 

13 petition would put a primary or derivative 

14 spouse or child beneficiary in grave danger of 

15 being sexually abused. 

16 ‘‘(2) DETERMINING DANGER.—In making the 

17 determination under paragraph (1)(C), the Secretary 

18 shall use the following principles: 

19 ‘‘(A) NATURE OF THE RELATIONSHIP.—In 

20 evaluating a petitioner who has filed a petition 

21 for a spouse, consideration should be given to 

22 indications of how well the petitioner and the 

23 spouse know each other. Petitions filed on the 

24 basis of marriages between men and women 

25 who have had little direct, personal contact with 


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1 each other should be viewed with suspicion. In 

2 cases where the petitioner and the spouse have 

3 had little direct, personal contact with each 

4 other, evidence should be submitted to establish 

5 that they have gotten to know each other in 

6 some other way. 

7 ‘‘(B) NATURE OF THE SEX OFFENSE.— 

8 Consideration should be given to when each of9 fense occurred for which the petitioner was in10 carcerated for more than a year, how serious it 

11 was, the sentence that was imposed, how long 

12 the petitioner was incarcerated, the age of the 

13 petitioner when it was committed, and the char14 acteristics of the victim. 

15 ‘‘(C) REHABILITATION.—Evidence of reha16 bilitation should be evaluated with respect to 

17 whether it diminishes the risk of sexual abuse 

18 to the primary or derivative spouse or child 

19 beneficiaries. 

20 ‘‘(D) PREVIOUS VISA PETITIONS.—The 

21 records for any previous petitions shall be ex22 amined to determine whether they provide or 

23 might lead to evidence that is pertinent to de24 termining whether granting the petition would 

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1 eficiary in grave danger of being sexually 

2 abused. 

3 ‘‘(3) REBUTTAL.—If the Secretary intends to 

4 deny a petition under paragraph (1), the Secretary 

5 shall provide the petitioner with a notice that states 

6 the reasons for the intended denial and provides the 

7 petitioner with at least 90 days to submit rebuttal 

8 evidence. Rebuttal should focus primarily on the fac9 tors that led the Secretary to believe that granting 

10 the petition would put a primary or derivative 

11 spouse or child beneficiary in grave danger of being 

12 sexually abused. 

13 ‘‘(4) POST-DENIAL REMEDIES.— 

14 ‘‘(A) APPEAL.—All final denials under 

15 paragraph (1) may be appealed to the Board of 

16 Immigration Appeals. 

17 ‘‘(B) NEW PETITION.—The petitioner may 

18 file a new petition whenever the petitioner has 

19 additional evidence that the petitioner believes 

20 might be sufficient to warrant granting the new 

21 petition. 

22 ‘‘(5) DISCLOSURE BY THE SECRETARY OF

23 HOMELAND SECURITY TO BENEFICIARIES.—In all 

24 cases in which it has been confirmed that the name 

25 of a petitioner under subsection (a) is listed on the 


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1 national sex offender registry maintained by the 

2 Federal Bureau of Investigation, and regardless of 

3 whether the Secretary may exercise discretion under 

4 paragraph (1), the Secretary shall give the petitioner 

5 at least 90 days to establish that the petitioner is 

6 not the person named on the registry. If the peti7 tioner fails to establish that the petitioner is not the 

8 person named on the registry within the time allot9 ted, the Secretary shall provide the beneficiaries with 

10 a written copy of the information on the registry 

11 that is available to the public before making a deci12 sion on the petition. The beneficiary shall be in13 formed that the registry information is based on 

14 available records and may not be complete. 

15 ‘‘(6) DISCLOSURE TO DEPARTMENT OF

16 STATE.—In all cases in which it has been confirmed 

17 that the name of a petitioner under subsection (a) 

18 is listed on the national sex offender registry main19 tained by the Federal Bureau of Investigation, and 

20 regardless of whether the Secretary may exercise 

21 discretion under paragraph (1), the Secretary shall 

22 provide the Secretary of State with— 

23 ‘‘(A) a separate document with information 

24 about the record on the national sex offender 

25 registry that is available to the public; 


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1 ‘‘(B) any additional information it has that 

2 raises concern that a primary or derivative 

3 spouse or child beneficiary may be subject to 

4 sexual abuse, including information from the 

5 registry that is not available to the public; and 

6 ‘‘(C) information about any previous peti7 tions under subsection (a) filed by the peti8 tioner. 

9 ‘‘(7) DISCLOSURE BY CONSULAR OFFICER TO

10 BENEFICIARIES.—When a petition under subsection 

11 (a) is granted, if the petition is filed by a petitioner 

12 who has failed to make the demonstration of mis13 identification described in paragraph (5), the con14 sular officer shall conduct an interview with the pri15 mary or derivative spouse or child beneficiary of the 

16 petition before issuing a visa to the beneficiary. At 

17 least part of the interview must be held without the 

18 presence of the petitioner. During the private part of 

19 the interview, the beneficiary will be given a written 

20 copy of the information about the petitioner from 

21 the registry that is available to the public. This doc22 ument must be written in the beneficiary’s primary 

23 language. The consular officer is required to advise 

24 the beneficiary that approval of the visa petition 


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1 does not mean that there are no reasons to be con2 cerned about his or her safety. 

3 ‘‘(8) ADDITIONAL RESPONSIBILITIES OF CON4 SULAR OFFICER.—The consular officer may return 

5 files to the Secretary of Homeland Security for fur6 ther consideration in cases where the consular offi7 cer is concerned that granting the visa might put a 

8 primary or derivative spouse or child beneficiary in 

9 grave danger of being sexually abused. When return10 ing a file under the previous sentence, the consular 

11 officer may add any additional information or obser12 vations the officer has that might have a bearing on 

13 whether the visa should be granted, including the re14 sults of any field examination that has been con15 ducted.’’. 

16 SEC. 403. REMOVAL OF CONDITIONAL PERMANENT RESI17 DENT STATUS. 

18 (a) IDENTIFY AND PROVIDE ASSISTANCE FOR

19 SPOUSES AND CHILDREN WHO ARE SUBJECT TO SEXUAL

20 ABUSE OR RELATED TYPES OF HARM.—Section 

21 216(d)(3) of the Immigration and Nationality Act (8 

22 U.S.C. 1186a(d)(3)) is amended— 

23 (1) by inserting before ‘‘The interview’’ the fol24 lowing: 


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1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), the interview’’; and 

3 (2) by adding at the end the following: 

4 ‘‘(B) PETITIONER LISTED ON NATIONAL

5 SEX OFFENDER REGISTRY.—In all cases where 

6 the Secretary of Homeland Security has con7 firmed that a petitioning spouse is listed on the 

8 national sex offender registry maintained by the 

9 Federal Bureau of Investigation, an interview 

10 with the alien spouse, and any alien sons or 

11 daughters, shall be required prior to removal of 

12 the conditional status, and at least part of the 

13 interview shall be held without the presence of 

14 the petitioning spouse. During the private por15 tion of the interview, questions will be asked to 

16 determine whether an investigation should be 

17 conducted regarding the welfare of the alien 

18 spouse, or any alien son or daughter. If it is de19 termined that any alien spouse, son, or daugh20 ter is being abused or harmed by the peti21 tioning spouse, the victim shall be offered what22 ever assistance is appropriate, including infor23 mation on ways to remain in the United State 

24 that do not depend on continuing the qualifying 

25 marriage.’’. 


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1 (b) HARDSHIP WAIVER IN CASES WHERE THE ALIEN

2 SPOUSE OR CHILD IS SUBJECT TO SEXUAL ABUSE.—Sec3 tion 216(c)(4) of the Immigration and Nationality Act (8 

4 U.S.C. 1186a(c)(4)) is amended— 

5 (1) in subparagraph (B), by striking ‘‘or’’ at 

6 the end; 

7 (2) in subparagraph (C), by striking the period 

8 at the end and inserting ‘‘, or’’; and 

9 (3) by inserting after subparagraph (C) the fol10 lowing: 

11 ‘‘(D) the qualifying marriage was entered 

12 into in good faith by the alien spouse and dur13 ing the marriage the alien spouse, or a son or 

14 daughter of the spouse, was sexually abused 

15 and the alien was not at fault in failing to meet 

16 the requirements of paragraph (1).’’. 

17 SEC. 404. SPECIAL TASK FORCE TO IDENTIFY PEOPLE 

18 NAMED ON THE NATIONAL SEX OFFENDER 

19 REGISTRY WHO HAVE FILED FAMILY-BASED 

20 CLASSIFICATION PETITIONS. 

21 (a) IN GENERAL.—The Secretary of Homeland Secu22 rity shall establish a task force, to be known as the ‘‘Task 

23 Force to Rescue Immigrant Victims of American Sex Of24 fenders’’. The task force shall consist of officials from 

25 Federal, State, and local law enforcement agencies with 


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1 experience in domestic violence, sex crimes, immigration 

2 law, trafficking in humans, organized crime, or any other 

3 area of experience which may be useful in completing the 

4 duties described in subsection (b). 

5 (b) DUTIES.—The duties of the task force shall be 

6 the following: 

7 (1) Working back in time from the date of the 

8 establishment of the task force, identifying individ9 uals on the Federal Bureau of Investigation’s sex of10 fender registry who have filed family-based petitions 

11 under section 204(a) of the Immigration and Na12 tionality Act. When a confirmed match has been 

13 made with the sex offender registry, the task force 

14 should ascertain whether the petitioner filed previous 

15 petitions. 

16 (2) Maintaining the information about the peti17 tioners in a comprehensive database. 

18 (3) Prioritizing the information according to 

19 the likelihood that primary or derivative spouse or 

20 child beneficiaries are in danger of sexual abuse. 

21 (4) Developing a system for investigating the 

22 cases in which beneficiaries may be at risk and pro23 viding them with information on how to seek assist24 ance if they are abused. 


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1 (5) Except for information on the registry that 

2 is available to the public, protecting the information 

3 produced by its investigations in accordance with the 

4 privacy rights of everyone involved in the investiga5 tion. 

6 (6) Taking whatever other actions as are rea7 sonable and appropriate when investigations lead to 

8 information about sexual abuse or other criminal ac9 tivities, including notifying State and local police de10 partments, government offices, public organizations 

11 that provide assistance to victims of sexual abuse, 

12 and religious organizations. 

13 (c) REPORT TO CONGRESS.—Not later than 270 days 

14 after the date of the enactment of this Act, the Secretary 

15 shall submit to the Congress a report on the findings and 

16 recommendations of the task force. The report shall in17 clude the following: 

18 (1) An analysis of the information obtained in 

19 searching visa petition and national sex offender reg20 istry records. 

21 (2) The results of any investigations conducted 

22 by the task force. 

23 (3) Recommendations on administrative and 

24 legislative actions that would assist in identifying 


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1 and protecting immigrant victims of sexual abuse or 

2 related harm. 

3 SEC. 405. AUTHORIZATION OF APPROPRIATIONS. 

4 There are authorized to be appropriated such sums 

5 as may be necessary to carry out the provisions of this 

6 Act. Amounts appropriated under this section shall remain 

7 available until expended. 

8 SEC. 406. REGULATIONS. 

9 Regulations implementing this Act shall be promul10 gated in final form not later than 180 days after the date 

11 of the enactment of this Act. 

12 TITLE V—LEGALIZATION FOR 

13 LONG-TERM RESIDENTS 

14 SEC. 501. EARNED ACCESS TO LEGALIZATION. 

15 (a) IN GENERAL.—Chapter 5 of title II (8 U.S.C. 

16 1255 et seq.) is amended by inserting after section 245A 

17 the following: 

18 ‘‘ADJUSTMENT OF STATUS ON THE BASIS OF EARNED

19 ACCESS TO LEGALIZATION

20 ‘‘SEC. 245B. (a) IN GENERAL.—The Secretary of 

21 Homeland Security may adjust the status of an alien to 

22 that of an alien lawfully admitted for permanent residence 

23 if the alien— 

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

25 States for a continuous period of not less than 5 

26 years immediately preceding the date on which this 


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1 provision was enacted and has maintained contin2 uous physical presence since then; 

3 ‘‘(2) has at all times been a person of good 

4 moral character; 

5 ‘‘(3) has never been convicted of a criminal of6 fense in the United States; 

7 ‘‘(4) in the case of an alien who is 18 years of 

8 age or older, but who is not over the age of 65, has 

9 successfully completed a course on reading, writing, 

10 and speaking words in ordinary usage in the English 

11 language, unless unable to do so on account of phys12 ical or developmental disability or mental impair13 ment; 

14 ‘‘(5) in the case of an alien 18 years of age or 

15 older, has accepted the values and cultural life of the 

16 United States; and 

17 ‘‘(6) in the case of an alien 18 years of age or 

18 older, has performed at least 40 hours of community 

19 service. 

20 ‘‘(b) TREATMENT OF BRIEF, CASUAL, AND INNO21 CENT ABSENCES.—An alien shall not be considered to 

22 have failed to maintain a continuous presence in the 

23 United States for purposes of subsection (a)(1) by virtue 

24 of brief, casual, and innocent absences from the United 

25 States. 


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1 ‘‘(c) ADMISSIBLE AS IMMIGRANT.— 

2 ‘‘(1) IN GENERAL.—The alien shall establish 

3 that the alien is admissible to the United States as 

4 immigrant, except as otherwise provided in para5 graph (2). 

6 ‘‘(2) EXCEPTIONS.—The provisions of para7 graphs (5), (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), 

8 (7)(A), (9)(B), and (9)(C)(i)(I) of section 212(a) 

9 shall not apply in the determination of an alien’s ad10 missibility under this section. 

11 ‘‘(d) SECURITY AND LAW ENFORCEMENT CLEAR12 ANCES.—The alien, if over 15 years of age, shall submit 

13 fingerprints in accordance with procedures established by 

14 the Secretary of Homeland Security. Such fingerprints 

15 shall be submitted to relevant Federal agencies to be 

16 checked against existing databases for information relat17 ing to criminal, national security, or other law enforce18 ment actions that would render the alien ineligible for ad19 justment of status under this section. The Secretary of 

20 Homeland Security shall provide a process for challenging 

21 the accuracy of matches that result in a finding of ineligi22 bility for adjustment of status. 

23 ‘‘(e) INAPPLICABILITY OF NUMERICAL LIMITA24 TIONS.—When an alien is granted lawful permanent resi25 dent status under this subsection, the number of immiVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 grant visas authorized to be issued under any provision 

2 of this Act shall not be reduced. The numerical limitations 

3 of sections 201 and 202 shall not apply to adjustment of 

4 status under this section. 

5 ‘‘(f) TERMINATION OF PROCEEDINGS.—The Sec6 retary of Homeland Security may terminate removal pro7 ceedings without prejudice pending the outcome of an 

8 alien’s application for adjustment of status under this sec9 tion on the basis of a prima facie showing of eligibility 

10 for relief under this section.’’. 

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

12 is amended by inserting after the item relating to section 

13 245A the following: 

‘‘Sec. 245B. Adjustment of status on the basis of earned access to legalization.’’. 

14 SEC. 502. LEGALIZATION PROVISIONS FOR CHILDREN. 

15 (a) IN GENERAL.—Chapter 5 of title II (8 U.S.C. 

16 1255 et seq.), as amended by section 201, is further 

17 amended by inserting after section 245B the following: 

18 ‘‘ADJUSTMENT OF STATUS FOR CERTAIN CHILDREN

19 ‘‘SEC. 245C. (a) IN GENERAL.—The Secretary of 

20 Homeland Security may adjust the status of an alien to 

21 that of an alien lawfully admitted for permanent residence 

22 if the alien is a child at the time of filing the application 

23 for such adjustment and establishes that the alien, at such 

24 time— 


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1 ‘‘(1) has been physically present and enrolled in 

2 school in the United States for a continuous period 

3 of not less than 5 years immediately preceding the 

4 date of such application, and during that period has 

5 been a person of good moral character; 

6 ‘‘(2) has fully integrated into life in the United 

7 States; 

8 ‘‘(3) has learned English or is satisfactorily 

9 pursuing a course of study to achieve an under10 standing of English; 

11 ‘‘(4) is successfully pursuing an elementary 

12 school, middle school, high school, or college-level 

13 education; and 

14 ‘‘(5) if older than 13 years of age, has per15 formed at least 60 hours of community service. 

16 ‘‘(b) TREATMENT OF BRIEF, CASUAL, AND INNO17 CENT ABSENCES.—An alien shall not be considered to 

18 have failed to maintain a continuous presence in the 

19 United States for purposes of subsection (a)(1) by virtue 

20 of brief, casual, and innocent absences from the United 

21 States. 

22 ‘‘(c) ADMISSIBLE AS IMMIGRANT.— 

23 ‘‘(1) IN GENERAL.—The alien shall establish 

24 that the alien is admissible to the United States as 


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1 an immigrant, except as otherwise provided in para2 graph (2). 

3 ‘‘(2) APPLICABILITY OF CERTAIN PROVI4 SIONS.— 

5 ‘‘(A) GROUNDS OF INADMISSIBILITY NOT

6 APPLIED.—The provisions of paragraphs (5), 

7 (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), 

8 (9)(B), and (9)(C) of section 212(a) shall not 

9 apply in the determination of an alien’s admis10 sibility under this section. 

11 ‘‘(B) WAIVER OF OTHER GROUNDS.— 

12 ‘‘(i) IN GENERAL.—Except as pro13 vided in clause (ii), the Secretary of Home14 land Security may waive any other provi15 sion of section 212(a) in the case of an in16 dividual alien for humanitarian purposes, 

17 to assure family unity, or when it is other18 wise in the public interest. 

19 ‘‘(ii) GROUNDS THAT MAY NOT BE

20 WAIVED.—The following provisions of sec21 tion 212(a) may not be waived by the Sec22 retary under clause (i): 

23 ‘‘(I) Paragraphs (2)(A) and 

24 (2)(B) (relating to criminals). 


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1 ‘‘(II) Paragraph (2)(C) (relating 

2 to drug offenses), except for so much 

3 of such paragraph as relates to a sin4 gle offense of simple possession of 30 

5 grams or less of marijuana. 

6 ‘‘(III) Paragraph (3) (relating to 

7 security and related grounds). 

8 ‘‘(d) NO NUMERICAL LIMITATIONS.—The numerical 

9 limitations of sections 201 and 202 shall not apply to ad10 justment of status under this section. 

11 ‘‘(e) CONFIDENTIALITY OF INFORMATION.—Except 

12 as provided in this section, neither the Secretary of Home13 land Security, nor any other official or employee of the 

14 Department of Homeland Security, may— 

15 ‘‘(1) use information furnished by applicant for 

16 an application filed under this section for any pur17 pose other than to make a determination on the ap18 plication; 

19 ‘‘(2) make any publication whereby the infor20 mation furnished by any particular applicant can be 

21 identified; or 

22 ‘‘(3) permit anyone other than the sworn offi23 cers and employees of the Department, the appli24 cant, or a representative of the applicant to examine 

25 individual applications. 


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1 ‘‘(f) DISSEMINATION OF INFORMATION.—The Sec2 retary of Homeland Security shall broadly disseminate in3 formation respecting the benefits which aliens may receive 

4 under this section and the requirements to obtain such 

5 benefits.’’. 

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

7 as amended by section 201, is amended further by insert8 ing after the item relating to section 245B the following: 

9 SEC. 503. UPDATED REGISTRY PROVISION. 

10 (a) IN GENERAL.—Section 249 (8 U.S.C. 1259) is 

11 amended— 

12 (1) in the section heading by striking ‘‘1972’’ 

13 and inserting ‘‘1986’’; and 

14 (2) in paragraph (a), by striking ‘‘1972’’ and 

15 inserting ‘‘1986’’. 

16 (b) CLERICAL AMENDMENT.—The table of sections 

17 is amended in the item relating to section 249 by striking 

18 ‘‘1972’’ and inserting ‘‘1986’’. 

‘‘Sec. 245C. Adjustment of status for certain children.’’. 


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1 TITLE VI—BORDER SECURITY 

2 PROVISIONS 

3 Subtitle A—Rapid Response 

4 Measures 

5 SEC. 601. EMERGENCY DEPLOYMENT OF UNITED STATES 

6 BORDER PATROL AGENTS. 

7 (a) IN GENERAL.—If the Governor of a State on an 

8 international border of the United States declares an 

9 international border security emergency and requests ad10 ditional United States Border Patrol agents from the Sec11 retary of Homeland Security, the Secretary is authorized, 

12 subject to subsections (b) and (c), to provide the State 

13 with up to 1,000 additional United States Border Patrol 

14 agents for the purpose of patrolling and defending the 

15 international border, in order to prevent individuals from 

16 crossing the international border and entering the United 

17 States at any location other than an authorized port of 

18 entry. 

19 (b) CONSULTATION.—The Secretary of Homeland 

20 Security shall consult with the President upon receipt of 

21 a request under subsection (a), and shall grant it to the 

22 extent that providing the requested assistance will not sig23 nificantly impair the Department of Homeland Security’s 

24 ability to provide border security for any other State. 


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1 (c) COLLECTIVE BARGAINING.—Emergency deploy2 ments under this section shall be made in conformance 

3 with all collective bargaining agreements and obligations. 

4 SEC. 602. ELIMINATION OF FIXED DEPLOYMENT OF UNITED 

5 STATES BORDER PATROL AGENTS. 

6 The Secretary of Homeland Security shall ensure 

7 that no United States Border Patrol agent is precluded 

8 from performing patrol duties and apprehending violators 

9 of law, except in unusual circumstances where the tem10 porary use of fixed deployment positions is necessary. 

11 SEC. 603. HELICOPTERS AND POWER BOATS. 

12 (a) IN GENERAL.—The Secretary of Homeland Secu13 rity shall increase by not less than 100 the number of 

14 United States Border Patrol helicopters, and shall in15 crease by not less than 250 the number of United States 

16 Border Patrol power boats. The Secretary of Homeland 

17 Security shall ensure that appropriate types of helicopters 

18 are procured for the various missions being performed. 

19 The Secretary of Homeland Security also shall ensure that 

20 the types of power boats that are procured are appropriate 

21 for both the waterways in which they are used and the 

22 mission requirements. 

23 (b) USE AND TRAINING.—The Secretary of Home24 land Security shall establish an overall policy on how the 

25 helicopters and power boats described in subsection (a) 


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1 will be used and implement training programs for the 

2 agents who use them, including safe operating procedures 

3 and rescue operations. 

4 SEC. 604. CONTROL OF UNITED STATES BORDER PATROL 

5 ASSETS. 

6 The United States Border Patrol shall have complete 

7 and exclusive administrative and operational control over 

8 all the assets utilized in carrying out its mission, includ9 ing, aircraft, watercraft, vehicles, detention space, trans10 portation, and all of the personnel associated with such 

11 assets. 

12 SEC. 605. MOTOR VEHICLES. 

13 The Secretary of Homeland Security shall establish 

14 a fleet of motor vehicles appropriate for use by the United 

15 States Border Patrol that will permit a ratio of at least 

16 one police-type vehicle per every 3 United States Border 

17 Patrol agents. Additionally, the Secretary of Homeland 

18 Security shall ensure that there are sufficient numbers 

19 and types of other motor vehicles to support the mission 

20 of the United States Border Patrol. All vehicles will be 

21 chosen on the basis of appropriateness for use by the 

22 United States Border Patrol, and each vehicle shall have 

23 a ‘‘panic button’’ and a global positioning system device 

24 that is activated solely in emergency situations for the 

25 purpose of tracking the location of an agent in distress. 


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1 The police-type vehicles shall be replaced at least every 

2 3 years. 

3 SEC. 606. PORTABLE COMPUTERS. 

4 The Secretary of Homeland Security shall ensure 

5 that each police-type motor vehicle in the fleet of the 

6 United States Border Patrol is equipped with a portable 

7 computer with access to all necessary law enforcement 

8 databases and otherwise suited to the unique operational 

9 requirements of the United States Border Patrol. 

10 SEC. 607. RADIO COMMUNICATIONS. 

11 The Secretary of Homeland Security shall augment 

12 the existing radio communications system so all law en13 forcement personnel working in every area where United 

14 States Border Patrol operations are conducted have clear 

15 and encrypted two-way radio communication capabilities 

16 at all times. Each portable communications device shall 

17 be equipped with a ‘‘panic button’’ and a global posi18 tioning system device that is activated solely in emergency 

19 situations for the purpose of tracking the location of the 

20 agent in distress. 

21 SEC. 608. HAND-HELD GLOBAL POSITIONING SYSTEM DE22 VICES. 

23 The Secretary of Homeland Security shall ensure 

24 that each United States Border Patrol agent is issued a 


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1 state-of-the-art hand-held global positioning system device 

2 for navigational purposes. 

3 SEC. 609. NIGHT VISION EQUIPMENT. 

4 The Secretary of Homeland Security shall ensure 

5 that sufficient quantities of state-of-the-art night vision 

6 equipment are procured and maintained to enable each 

7 United States Border Patrol agent working during the 

8 hours of darkness to be equipped with a portable night 

9 vision device. 

10 SEC. 610. BORDER ARMOR. 

11 The Secretary of Homeland Security shall ensure 

12 that every United States Border Patrol agent is issued 

13 high-quality body armor that is appropriate for the climate 

14 and risks faced by the individual officer. Each officer shall 

15 be allowed to select from among a variety of approved 

16 brands and styles. Officers shall be strongly encouraged, 

17 but not mandated, to wear such body armor whenever 

18 practicable. All body armor shall be replaced at least every 

19 5 years. 

20 SEC. 611. WEAPONS. 

21 The Secretary of Homeland Security shall ensure 

22 that United States Border Patrol agents are equipped 

23 with weapons that are reliable and effective to protect 

24 themselves, their fellow officers, and innocent third parties 

25 from the threats posed by armed criminals. In addition, 


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1 the Secretary shall ensure that the Department’s policies 

2 allow all such officers to carry weapons that are suited 

3 to the potential threats that they face. 

4 SEC. 612. UNIFORMS. 

5 The Secretary of Homeland Security shall ensure 

6 that all United States Border Patrol agents are provided 

7 with all necessary uniform items, including outerwear suit8 ed to the climate, footwear, belts, holsters, and personal 

9 protective equipment, at no cost to such agents. Such 

10 items shall be replaced at no cost to such agents as they 

11 become worn, unserviceable, or no longer fit properly. 

12 Subtitle B—Detention Pending 

13 Removal 

14 SEC. 621. DETENTION FACILITIES FOR ALIENS ARRESTED 

15 FOR ILLEGAL ENTRY. 

16 The Secretary of Homeland Security shall make ar17 rangements for the availability of 100,000 additional beds 

18 for detaining aliens taken into custody by immigration of19 ficials. Some of these beds shall be rented from Federal, 

20 State, and local detention facilities. The remainder of the 

21 100,000 shall be constructed to meet this demand on a 

22 temporary basis and then converted to other use when 

23 they are no longer needed as detention facilities. 


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1 SEC. 622. EXPANSION AND EFFECTIVE MANAGEMENT OF 

2 DETENTION FACILITIES. 

3 (a) IN GENERAL.—Subject to the availability of ap4 propriations, the Secretary of Homeland Security shall 

5 fully utilize— 

6 (1) all available detention facilities operated or 

7 contracted by the Department of Homeland Secu8 rity; 

9 (2) all possible options to cost effectively in10 crease available detention capacities, including the 

11 use of State and local correctional facilities, private 

12 space, and secure alternatives to detention; and 

13 (3) the Department’s Office of Civil Rights and 

14 Civil Liberties shall monitor all facilities that are 

15 being used to hold detainees for more than 72 hours. 

16 The monitoring will include an evaluation of whether there 

17 is compliance with the requirements of the Department’s 

18 Detention Operations Manual. 

19 (b) SECURE ALTERNATIVES TO DETENTION PRO20 GRAM.— 

21 (1) NATURE OF THE PROGRAM.—For purposes 

22 of this section, the secure alternatives to detention 

23 referred to in subsection (a) is a program under 

24 which eligible aliens are released to the custody of 

25 suitable individual or organizational sponsors who 

26 will supervise them, use appropriate safeguards to 


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1 prevent them from absconding, and ensure that they 

2 make required appearances. 

3 (2) PROGRAM DEVELOPMENT.—The program 

4 shall be developed in accordance with the following 

5 guidelines: 

6 (A) The Secretary shall design the pro7 gram in consultation with nongovernmental or8 ganizations and academic experts in both the 

9 immigration and the criminal justice fields. 

10 Consideration should be given to methods that 

11 have proven successful in appearance assistance 

12 programs, such as the appearance assistance 

13 program developed by the Vera Institute and 

14 the Department of Homeland Security’s Inten15 sive Supervision Appearance Program. 

16 (B) The program shall utilize a continuum 

17 of alternatives based on the alien’s need for su18 pervision, including placement of the alien with 

19 an individual or organizational sponsor, a su20 pervised group home, or in a supervised, non21 penal community setting that has guards sta22 tioned along its perimeter. 

23 (C) The Secretary shall enter into con24 tracts with nongovernmental organizations and 


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1 individuals to implement the secure alternatives 

2 to detention program. 

3 (c) ELIGIBILITY AND OPERATIONS.— 

4 (1) SELECTION OF PARTICIPANTS.—The Sec5 retary shall select aliens to participate in the pro6 gram from designated groups specified in paragraph 

7 (4) if the Secretary determines that such aliens are 

8 not flight risks or dangers to the community. 

9 (2) VOLUNTARY PARTICIPATION.—An alien’s 

10 participation in the program is voluntary and shall 

11 not confer any rights or benefits to the alien under 

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

13 et seq.). 

14 (3) LIMITATION ON PARTICIPATION.— 

15 (A) IN GENERAL.—Only aliens who are in 

16 expedited removal proceedings under section 

17 236 of the Immigration and Nationality Act (8 

18 U.S.C. 1226) may participate in the program. 

19 (B) RULES OF CONSTRUCTION.— 

20 (i) ALIENS APPLYING FOR ASYLUM.— 

21 Aliens who have established a credible fear 

22 of persecution and have been referred to 

23 the Executive Office for Immigration Re24 view for an asylum hearing shall not be 

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1 ceedings and the custody status of such 

2 aliens after service of a Notice to Appear 

3 shall be determined in accordance with the 

4 procedures governing aliens in removal 

5 proceedings under section 240 of such Act 

6 (8 U.S.C. 1229a). 

7 (ii) UNACCOMPANIED ALIEN CHIL8 DREN.—Unaccompanied alien children (as 

9 defined in section 462(g)(2) of the Home10 land Security Act (6 U.S.C. 279(g)(2))) 

11 shall be considered to be in the care and 

12 exclusive custody of the Department of 

13 Health and Human Services and shall not 

14 be subject to expedited removal and shall 

15 not be permitted to participate in the pro16 gram. 

17 (4) DESIGNATED GROUPS.—The designated 

18 groups referred to in paragraph (1) are the fol19 lowing: 

20 (A) Alien parents who are being detained 

21 with one or more of their children, and their de22 tained children. 

23 (B) Aliens who have serious medical or 

24 mental health needs. 


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1 (C) Aliens who are mentally retarded or 

2 autistic. 

3 (D) Pregnant alien women. 

4 (E) Elderly aliens who are over the age of 

5 65. 

6 (F) Aliens placed in expedited removal pro7 ceedings after being rescued from trafficking or 

8 criminal operations by Government authorities. 

9 (G) Other groups designated in regulations 

10 promulgated by the Secretary. 

11 (5) IMPLEMENTING REGULATIONS.—Not later 

12 than 180 days after the date of the enactment of 

13 this Act, the Secretary shall promulgate regulations 

14 to implement the secure alternatives to detention 

15 program and to standardize the care and treatment 

16 of aliens in immigration custody based on the Deten17 tion Operations Manual of the Department of 

18 Homeland Security. 

19 (6) DECISIONS REGARDING PROGRAM NOT RE20 VIEWABLE.—The decisions of the Secretary regard21 ing when to utilize the program and to what extent 

22 and the selection of aliens to participate in the pro23 gram shall not be subject to administrative or judi24 cial review. 


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1 (d) REPORTING REQUIREMENTS.—Not later than 

2 180 days after the date of the enactment of this Act and 

3 annually thereafter, the Secretary shall submit to the 

4 Committee on Homeland Security of the House of Rep5 resentatives, the Committee on the Judiciary of the House 

6 of Representatives, the Committee on Homeland Security 

7 and Governmental Affairs of the Senate, and the Com8 mittee on the Judiciary of the Senate a report that details 

9 all policies, regulations, and actions taken to comply with 

10 the provisions in this section, including maximizing deten11 tion capacity and increasing the cost-effectiveness of de12 tention by implementing the secure alternatives to deten13 tion program, and a description of efforts taken to ensure 

14 that all aliens in expedited removal proceedings are resid15 ing under conditions that are safe, secure, and healthy. 

16 (e) AUTHORIZATION OF APPROPRIATIONS.—There 

17 are authorized to be appropriated to the Secretary of 

18 Homeland Security such sums as may be necessary to 

19 carry out this section. Amounts appropriated pursuant to 

20 this section shall remain available until expended. 


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1 Subtitle C—Recruitment and Re2 tention of Additional Immigra3 tion Law Enforcement Per4 sonnel 

5 SEC. 631. ADDITIONAL UNITED STATES BORDER PATROL 

6 AGENTS. 

7 The Secretary of Homeland Security shall increase 

8 the number of United States Border Patrol agents by— 

9 (1) 2,500 in fiscal year 2010; 

10 (2) 2,750 in fiscal year 2011; 

11 (3) 3,000 in fiscal year 2012; 

12 (4) 3,250 in fiscal year 2013; and 

13 (5) 3,500 in fiscal year 2014. 

14 SEC. 632. PROVISIONS RELATING TO THE EXERCISE OF 

15 CERTAIN APPOINTMENT AND OTHER SIMI16 LAR AUTHORITIES WITH RESPECT TO THE 

17 UNITED STATES BORDER PATROL. 

18 (a) IN GENERAL.—Notwithstanding any other provi19 sion of law— 

20 (1) all authority described in subsection (b) 

21 that (but for this section) would otherwise be vested 

22 in the Secretary of Homeland Security shall instead 

23 be vested in the head of the United States Border 

24 Patrol; 


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1 (2) an individual may not be appointed or con2 tinue to serve as the head of the United States Bor3 der Patrol if, at the time of appointment, such indi4 vidual has not completed at least 20 years of service, 

5 within the competitive service (as defined by section 

6 2102 of title 5, United States Code), as a United 

7 States Border Patrol agent; and 

8 (3) all activities described in subsection (b) 

9 shall be considered inherently Governmental func10 tions and may not be carried out by any persons 

11 other than employees of the United States Border 

12 Patrol. 

13 (b) AUTHORITIES DESCRIBED.—This section applies 

14 with respect to any authority relating to the recruitment, 

15 selection, and appointment of applicants (including the 

16 conducting of any investigation necessary to approve or 

17 grant security clearances) for United States Border Patrol 

18 agents, law enforcement officers (other than United States 

19 Border Patrol agents), and such other positions within the 

20 United States Border Patrol as the head of the United 

21 States Border Patrol may by regulation determine. 

22 (c) REGULATIONS.—The head of the United States 

23 Border Patrol shall by regulation identify the specific au24 thorities, including citations to the relevant provisions of 

25 law, rule, or regulation, to which this section applies. 


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1 SEC. 633. TRAINING FACILITIES. 

2 The Secretary of Homeland Security shall ensure 

3 that the training facilities used to train newly-hired 

4 United States Border Patrol agents are sufficiently spa5 cious and modern to ensure that all recruits are afforded 

6 the highest possible quality training, as well as reasonably 

7 comfortable living conditions. All dormitories shall be con8 structed so that each trainee is housed in separate quar9 ters. Moreover, the Secretary shall ensure that the train10 ing sites selected contains adequate housing for all perma11 nent and temporary instructors within the local com12 muting area. 

13 SEC. 634. OPERATIONAL FACILITIES. 

14 The Secretary of Homeland Security shall ensure 

15 that all operational facilities of the United States Border 

16 Patrol are well-equipped and sufficiently spacious and 

17 modern to enable all of the personnel assigned to such fa18 cilities to efficiently accomplish the agency’s mission. 

19 SEC. 635. MAXIMUM STUDENT LOAN REPAYMENTS FOR 

20 UNITED STATES BORDER PATROL AGENTS. 

21 Section 5379(b) of title 5, United States Code, is 

22 amended by adding at the end the following: 

23 ‘‘(4) In the case of an employee (otherwise eligible 

24 for benefits under this section) who is serving as a full25 time active-duty United States Border Patrol agent within 

26 the Department of Homeland Security— 


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1 ‘‘(A) paragraph (2)(A) shall be applied by sub2 stituting ‘$20,000’ for ‘$10,000’; and 

3 ‘‘(B) paragraph (2)(B) shall be applied by sub4 stituting ‘$80,000’ for ‘$60,000’.’’. 

5 SEC. 636. RECRUITMENT AND RELOCATION BONUSES AND 

6 RETENTION ALLOWANCES FOR PERSONNEL 

7 OF THE DEPARTMENT OF HOMELAND SECU8 RITY. 

9 The Secretary of Homeland Security shall ensure 

10 that the authority to pay recruitment and relocation bo11 nuses under section 5753 of title 5, United States Code, 

12 the authority to pay retention bonuses under section 5754 

13 of such title, and any other similar authorities available 

14 under any other provision of law, rule, or regulation, are 

15 exercised to the fullest extent allowable in order to encour16 age service in the Department of Homeland Security. 

17 SEC. 637. REPEAL OF THE DEPARTMENT OF HOMELAND SE18 CURITY HUMAN RESOURCES MANAGEMENT 

19 SYSTEM. 

20 (a) REPEAL.— 

21 (1) IN GENERAL.—Effective as of the date 

22 specified in section 4 of the Homeland Security Act 

23 of 2002 (6 U.S.C. 101 note), chapter 97 of title 5, 

24 United States Code (as added by section 841(a)(2) 

25 of such Act), section 841(b)(3) of such Act, and subVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 sections (c) and (e) of section 842 of such Act are 

2 repealed. 

3 (2) REGULATIONS.—Any regulations prescribed 

4 under authority of chapter 97 of title 5, United 

5 States Code, are void ab initio. 

6 (b) NULLIFICATION OF PREVIOUS EXCLUSIONS.— 

7 Effective as of the date of the enactment of this Act, all 

8 previous determinations as to whether— 

9 (1) an agency or subdivision of the Department 

10 of Homeland Security (or a predecessor agency or 

11 subdivision transferred into the Department) is ex12 cluded from coverage under chapter 71 of title 5, 

13 United States Code, 

14 (2) a unit or subdivision of a unit within the 

15 Department of Homeland Security (or a predecessor 

16 agency or subdivision transferred into the Depart17 ment) is not appropriate for representation by a 

18 labor organization under such chapter, or 

19 (3) an employee or position within the Depart20 ment of Homeland Security (or a predecessor agency 

21 or subdivision transferred into the Department) is 

22 within a unit that is not appropriate for representa23 tion by a labor organization under such chapter, 

24 are null and void, except to the extent that such deter25 minations were made in accordance with the criteria outVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 lined in paragraph (1), (2), (3), (4), or (7) of section 

2 7112(b) of such title 5. 

3 (c) CLERICAL AMENDMENT.—The table of chapters 

4 for part III of title 5, United States Code, is amended 

5 by striking the item relating to chapter 97. 

6 SEC. 638. ESTABLISHMENT OF SPECIALIZED INSPECTOR 

7 OCCUPATIONS. 

8 The Secretary of Homeland Security shall establish 

9 within the Bureau of Customs and Border Protection 3 

10 distinct inspectional occupations: immigration, customs, 

11 and agriculture. These divisions shall coordinate closely 

12 with each other under the direction of a high-level official 

13 within the Bureau, but shall report to separate operational 

14 chains of command. 

15 SEC. 639. INCREASE IN INSPECTORS AT AIRPORT AND 

16 LAND BORDER INSPECTION STATIONS. 

17 In each of the fiscal years 2010 through 2014, the 

18 Secretary of Homeland Security shall increase by not less 

19 than 1,000 the number of positions for full-time active 

20 duty immigration inspectors at airport and land border in21 spection stations within the Department of Homeland Se22 curity above the number of such positions for which funds 

23 were allotted for the preceding fiscal year. 


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1 SEC. 640. LAW ENFORCEMENT RETIREMENT COVERAGE 

2 FOR INSPECTION OFFICERS AND OTHER EM3 PLOYEES. 

4 (a) AMENDMENTS.— 

5 (1) FEDERAL EMPLOYEES’ RETIREMENT SYS6 TEM.— 

7 (A) Paragraph (17) of section 8401 of title 

8 5, United States Code, is amended by striking 

9 ‘‘and’’ at the end of subparagraph (C), and by 

10 adding at the end the following: 

11 ‘‘(E) an employee (not otherwise covered 

12 by this paragraph)— 

13 ‘‘(i) the duties of whose position in14 clude the investigation or apprehension of 

15 individuals suspected or convicted of of16 fenses against the criminal laws of the 

17 United States; and 

18 ‘‘(ii) who is authorized to carry a fire19 arm; and 

20 ‘‘(F) an employee of the Internal Revenue 

21 Service, the duties of whose position are pri22 marily the collection of delinquent taxes and the 

23 securing of delinquent returns;’’. 

24 (B) CONFORMING AMENDMENT.—Section 

25 8401(17)(C) of title 5, United States Code, is 


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1 amended by striking ‘‘(A) and (B)’’ and insert2 ing ‘‘(A), (B), (E), and (F)’’. 

3 (2) CIVIL SERVICE RETIREMENT SYSTEM.— 

4 Paragraph (20) of section 8331 of title 5, United 

5 States Code, is amended by inserting after ‘‘posi6 tion.’’ (in the matter before subparagraph (A)) the 

7 following: ‘‘For the purpose of this paragraph, the 

8 employees described in the preceding provision of 

9 this paragraph (in the matter before ‘including’) 

10 shall be considered to include an employee, not oth11 erwise covered by this paragraph, who satisfies 

12 clauses (i)–(ii) of section 8401(17)(E) and an em13 ployee of the Internal Revenue Service the duties of 

14 whose position are as described in section 

15 8401(17)(F).’’. 

16 (3) EFFECTIVE DATE.—Except as provided in 

17 subsection (b), the amendments made by this sub18 section shall take effect on the date of the enactment 

19 of this Act, and shall apply only in the case of any 

20 individual first appointed (or seeking to be first ap21 pointed) as a law enforcement officer (within the 

22 meaning of those amendments) on or after such 

23 date. 

24 (b) TREATMENT OF SERVICE PERFORMED BY IN25 CUMBENTS.— 


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1 (1) LAW ENFORCEMENT OFFICER AND SERVICE

2 DESCRIBED.— 

3 (A) LAW ENFORCEMENT OFFICER.—Any 

4 reference to a law enforcement officer described 

5 in this paragraph refers to an individual who 

6 satisfies the requirements of section 8331(20) 

7 or 8401(17) of title 5, United States Code (re8 lating to the definition of a law enforcement of9 ficer) by virtue of the amendments made by 

10 subsection (a). 

11 (B) SERVICE.—Any reference to service 

12 described in this paragraph refers to service 

13 performed as a law enforcement officer (as de14 scribed in this paragraph). 

15 (2) INCUMBENT DEFINED.—For purposes of 

16 this subsection, the term ‘‘incumbent’’ means an in17 dividual who— 

18 (A) is first appointed as a law enforcement 

19 officer (as described in paragraph (1)) before 

20 the date of the enactment of this Act; and 

21 (B) is serving as such a law enforcement 

22 officer on such date. 

23 (3) TREATMENT OF SERVICE PERFORMED BY

24 INCUMBENTS.— 


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1 (A) IN GENERAL.—Service described in 

2 paragraph (1) which is performed by an incum3 bent on or after the date of the enactment of 

4 this Act shall, for all purposes (other than those 

5 to which subparagraph (B) pertains), be treated 

6 as service performed as a law enforcement offi7 cer (within the meaning of section 8331(20) or 

8 8401(17) of title 5, United States Code, as ap9 propriate), irrespective of how such service is 

10 treated under subparagraph (B). 

11 (B) RETIREMENT.—Service described in 

12 paragraph (1) which is performed by an incum13 bent before, on, or after the date of the enact14 ment of this Act shall, for purposes of sub15 chapter III of chapter 83 and chapter 84 of 

16 title 5, United States Code, be treated as serv17 ice performed as a law enforcement officer 

18 (within the meaning of such section 8331(20) 

19 or 8401(17), as appropriate), but only if an ap20 propriate written election is submitted to the 

21 Office of Personnel Management within 5 years 

22 after the date of the enactment of this Act or 

23 before separation from Government service, 

24 whichever is earlier. 


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1 (4) INDIVIDUAL CONTRIBUTIONS FOR PRIOR

2 SERVICE.— 

3 (A) IN GENERAL.—An individual who 

4 makes an election under paragraph (3)(B) may, 

5 with respect to prior service performed by such 

6 individual, contribute to the Civil Service Re7 tirement and Disability Fund the difference be8 tween the individual contributions that were ac9 tually made for such service and the individual 

10 contributions that should have been made for 

11 such service if the amendments made by sub12 section (a) had then been in effect. 

13 (B) EFFECT OF NOT CONTRIBUTING.—If 

14 no part of or less than the full amount required 

15 under subparagraph (A) is paid, all prior serv16 ice of the incumbent shall remain fully cred17 itable as law enforcement officer service, but 

18 the resulting annuity shall be reduced in a man19 ner similar to that described in section 

20 8334(d)(2) of title 5, United States Code, to 

21 the extent necessary to make up the amount 

22 unpaid. 

23 (C) PRIOR SERVICE DEFINED.—For pur24 poses of this subsection, the term ‘‘prior serv25 ice’’ means, with respect to any individual who 


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1 makes an election under paragraph (3)(B), 

2 service (described in paragraph (1)) performed 

3 by such individual before the date as of which 

4 appropriate retirement deductions begin to be 

5 made in accordance with such election. 

6 (5) GOVERNMENT CONTRIBUTIONS FOR PRIOR

7 SERVICE.— 

8 (A) IN GENERAL.—If an incumbent makes 

9 an election under paragraph (3)(B), the agency 

10 in or under which that individual was serving at 

11 the time of any prior service (referred to in 

12 paragraph (4)) shall remit to the Office of Per13 sonnel Management, for deposit in the Treasury 

14 of the United States to the credit of the Civil 

15 Service Retirement and Disability Fund, the 

16 amount required under subparagraph (B) with 

17 respect to such service. 

18 (B) AMOUNT REQUIRED.—The amount an 

19 agency is required to remit is, with respect to 

20 any prior service, the total amount of additional 

21 Government contributions to the Civil Service 

22 Retirement and Disability Fund (above those 

23 actually paid) that would have been required if 

24 the amendments made by subsection (a) had 

25 then been in effect. 


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1 (C) CONTRIBUTIONS TO BE MADE RAT2 ABLY.—Government contributions under this 

3 paragraph on behalf of an incumbent shall be 

4 made by the agency ratably (on at least an an5 nual basis) over the 10-year period beginning 

6 on the date referred to in paragraph (4)(C). 

7 (6) EXEMPTION FROM MANDATORY SEPARA8 TION.—Nothing in section 8335(b) or 8425(b) of 

9 title 5, United States Code, shall cause the involun10 tary separation of a law enforcement officer (as de11 scribed in paragraph (1)) before the end of the 3- 

12 year period beginning on the date of the enactment 

13 of this Act. 

14 (7) REGULATIONS.—The Office shall prescribe 

15 regulations to carry out this section, including— 

16 (A) provisions in accordance with which in17 terest on any amount under paragraph (4) or 

18 (5) shall be computed, based on section 8334(e) 

19 of title 5, United States Code; and 

20 (B) provisions for the application of this 

21 subsection in the case of— 

22 (i) any individual who— 

23 (I) satisfies subparagraph (A) 

24 (but not subparagraph (B)) of para25 graph (2); and 


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1 (II) serves as a law enforcement 

2 officer (as described in paragraph (1)) 

3 after the date of the enactment of this 

4 Act; and 

5 (ii) any individual entitled to a sur6 vivor annuity (based on the service of an 

7 incumbent, or of an individual under 

8 clause (i), who dies before making an elec9 tion under paragraph (3)(B)), to the ex10 tent of any rights that would then be avail11 able to the decedent (if still living). 

12 (8) RULE OF CONSTRUCTION.—Nothing in this 

13 subsection shall be considered to apply in the case 

14 of a reemployed annuitant. 

15 SEC. 641. REESTABLISHMENT OF THE UNITED STATES BOR16 DER PATROL ANTI-SMUGGLING UNIT. 

17 The Secretary of Homeland Security shall reestablish 

18 the Anti-Smuggling Unit within the Office of United 

19 States Border Patrol, and shall immediately staff such of20 fice with a minimum of 500 criminal investigators selected 

21 from within the ranks of the United States Border Patrol. 

22 Staffing levels shall be adjusted upward periodically in ac23 cordance with workload requirements. 


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1 SEC. 642. ESTABLISHMENT OF SPECIALIZED CRIMINAL IN2 VESTIGATOR OCCUPATIONS. 

3 The Secretary of Homeland Security shall establish 

4 specialized Criminal Investigator occupations within the 

5 Department: one for the investigation of violations of im6 migration laws, another for customs laws, and a third for 

7 agriculture laws. These divisions shall coordinate closely 

8 with each other under the direction of a high-level official 

9 within the Department, but shall report to separate oper10 ational chains of command. 

11 SEC. 643. ESTABLISHMENT OF CAREER PATHS TO CRIMI12 NAL INVESTIGATOR POSITIONS. 

13 The Secretary of Homeland Security shall ensure 

14 that all persons selected for criminal investigator positions 

15 within the Department of Homeland Security possess a 

16 minimum of 3 years of field experience within the Depart17 ment or its predecessor agencies in the specialized area 

18 of law that will be investigated. 

19 SEC. 644. ADDITIONAL IMMIGRATION ENFORCEMENT 

20 AGENTS. 

21 In each of fiscal years 2010 through 2014, the Sec22 retary of Homeland Security shall increase by not less 

23 than 500 the number of positions for full-time active duty 

24 immigration enforcement agents responsible for trans25 porting and guarding detained aliens above the number 


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1 of such positions for which funds were allotted for the pre2 ceding fiscal year. 

3 SEC. 645. INCREASE UNITED STATES BORDER PATROL 

4 AGENT AND INSPECTOR PAY. 

5 (a) IN GENERAL.—Effective as of the first day of the 

6 first applicable pay period beginning on or after the date 

7 of the enactment of this Act, the rate of basic pay for 

8 all employees of the Department of Homeland Security de9 scribed in subsection (b) shall be increased in accordance 

10 with subsection (c). 

11 (b) EMPLOYEES DESCRIBED.—This section applies 

12 to any individual who, as of the date of the enactment 

13 of this Act— 

14 (1) is a journey level United States Border Pa15 trol agent or immigration, customs, or agriculture 

16 inspector within the Department of Homeland Secu17 rity, whose primary duties consist of enforcing the 

18 immigration, customs, or agriculture laws of the 

19 United States; 

20 (2) has completed at least one year of service 

21 as a United States Border Patrol agent or inspector 

22 (whether as an employee of the Department of 

23 Homeland Security, the Department of Justice, or 

24 both agencies combined); and 


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1 (3) is receiving an annual rate of basic pay for 

2 positions at GS–11 of the General Schedule under 

3 section 5332 of title 5, United States Code. 

4 (c) INCREASE DESCRIBED.—The basic rate of pay for 

5 the employees described in this subsection shall increase 

6 from the annual rate of basic pay for positions at GS– 

7 11 of the General Schedule to the annaul rate of basic 

8 pay for positions at GS–13 of such schedule. 

9 SEC. 646. FAIR LABOR STANDARDS ACT OVERTIME. 

10 Notwithstanding any other provisionof law, all over11 time hours worked on and after the date of the enactment 

12 of this Act by all employees of the Department of Home13 land Security who are at or below the second-line level of 

14 field supervision shall be compensated in accordance with 

15 the provisions of the Fair Labor Standards Act. 

16 Subtitle D—Enforcement Tools to 

17 Diminish Entries Using Fraudu18 lent Documents and Commer19 cial Alien Smuggling 

20 SEC. 651. FOREIGN LANGUAGE TRAINING. 

21 The Secretary of Homeland Security shall require all 

22 officers of the Department of Homeland Security who 

23 come into contact with aliens who have crossed the border 

24 illegally to take Spanish and other appropriate foreign lanVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 guage training courses to facilitate communication with 

2 the aliens. 

3 SEC. 652. FOREIGN LANGUAGE AWARDS. 

4 (a) SPECIAL RULES.—The Secretary of Homeland 

5 Security shall apply section 4523 of title 5, United States 

6 Code, in conformance with the following: 

7 (1) Any law enforcement officer within the De8 partment of Homeland Security whose primary du9 ties involve— 

10 (A) the enforcement of the immigration 

11 laws of the United States, 

12 (B) the detention or transportation of vio13 lators of the immigration laws of the United 

14 States, or 

15 (C) both, 

16 shall, for purposes of such section 4523, be pre17 sumed to make substantial use of a foreign language 

18 in the performance of such officer’s official duties. 

19 (2)(A) Any individual who successfully com20 pletes a foreign language program as part of their 

21 agency-sponsored or agency-approved training shall 

22 be deemed to possess the foreign language pro23 ficiency necessary to qualify for an award under 

24 such section for so long as such individual serves as 


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1 a law enforcement officer within the Department of 

2 Homeland Security. 

3 (B) Nothing in this paragraph shall, in the case 

4 of any individual who does not satisfy subparagraph 

5 (A), prevent such individual from being allowed to 

6 demonstrate foreign language proficiency in accord7 ance with the criteria and procedures that would 

8 otherwise apply under such section. 

9 (3) For purposes of applying subsection (a) of 

10 such section 4523, substitute ‘‘equal to’’ for ‘‘up to’’. 

11 (b) DEFINITION.—For purposes of this section, the 

12 term ‘‘law enforcement officer’’ has the meaning given 

13 such term by section 4521 of such title 5. 

14 SEC. 653. ADDITIONAL PERSONNEL FOR INVESTIGATION OF 

15 FRAUDULENT SCHEMES AND DOCUMENT 

16 FRAUD. 

17 The Secretary of Homeland Security shall hire at 

18 least 1000 additional investigators for investigating fraud19 ulent schemes, including benefit application schemes, and 

20 fraudulent documents used to enter or remain in the 

21 United States unlawfully. 


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1 SEC. 654. ESTABLISH A SPECIAL TASK FORCE FOR COORDI2 NATING AND DISTRIBUTING INFORMATION 

3 ON FRAUDULENT IMMIGRATION DOCU4 MENTS. 

5 (a) IN GENERAL.—The Secretary of Homeland Secu6 rity shall establish a Fraudulent Documents Task Force 

7 to carry out the following: 

8 (1) Collect information from Federal, State, 

9 and local law enforcement agencies, and foreign gov10 ernments on the production, sale, distribution and 

11 use of fraudulent documents intended to be used to 

12 enter, travel or remain within the United States un13 lawfully. 

14 (2) Maintain the information described in sub15 part (1) in a comprehensive database. 

16 (3) Maintain a repository of genuine and fraud17 ulent travel and identity document exemplars. 

18 (4) Convert the information collected into re19 ports that provide guidance to government officials 

20 in identifying fraudulent documents being used to 

21 enter into, travel within or remain in the United 

22 States. 

23 (5) Develop a system for distributing these re24 ports on an ongoing basis to appropriate Federal, 

25 State, and local law enforcement agencies. 


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1 (b) DISTRIBUTION OF INFORMATION.—The task 

2 force will distribute the reports to appropriate Federal, 

3 State, and local law enforcement agencies on an ongoing 

4 basis. 

5 SEC. 655. NEW NONIMMIGRANT VISA CLASSIFICATION TO 

6 ENABLE INFORMANTS TO ENTER THE 

7 UNITED STATES AND REMAIN TEMPORARILY. 

8 (a) IN GENERAL.—Section 101(a)(15)(S) (8 U.S.C. 

9 1101(a)(15)(S)) is amended— 

10 (1) in clause (i), by striking ‘‘or’’ at the end; 

11 (2) in clause (ii), by striking the comma at the 

12 end and inserting ‘‘; or’’; 

13 (3) by inserting after clause (ii) the following: 

14 ‘‘(iii) who the Secretary of Homeland 

15 Security, the Secretary of State, or the At16 torney General determines— 

17 ‘‘(I) is in possession of critical re18 liable information concerning a com19 mercial alien smuggling organization 

20 or enterprise or a commercial oper21 ation for making or trafficking in doc22 uments to be used for entering or re23 maining in the United States unlaw24 fully; 


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1 ‘‘(II) is willing to supply or has 

2 supplied such information to a Fed3 eral or State court; or 

4 ‘‘(III) whose presence in the 

5 United States the Secretary of Home6 land Security, the Secretary of State, 

7 or the Attorney General determines is 

8 essential to the success of an author9 ized criminal investigation, the suc10 cessful prosecution of an individual in11 volved in the commercial alien smug12 gling organization or enterprise, or 

13 the disruption of such organization or 

14 enterprise or a commercial operation 

15 for making or trafficking in docu16 ments to be used for entering or re17 maining in the United States unlaw18 fully.’’; 

19 (4) by inserting ‘‘, or with respect to clause 

20 (iii), the Secretary of Homeland Security, the Sec21 retary of State, or the Attorney General’’ after 

22 ‘‘jointly’’; and 

23 (5) by striking ‘‘(i) or (ii)’’ and inserting ‘‘(i), 

24 (ii), or (iii)’’. 


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1 (b) ADMISSION OF NONIMMIGRANTS.—Section 

2 214(k) (8 U.S.C. 1184(k)) is amended— 

3 (1) by adding at the end of paragraph (1) the 

4 following: ‘‘The number of aliens who may be pro5 vided a visa as nonimmigrants under section 

6 101(a)(15)(S)(iii) in any fiscal year may not exceed 

7 400.’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(5) If the Secretary of Homeland Security, the 

10 Secretary of State, or the Attorney General deter11 mines that a nonimmigrant described in clause (iii) 

12 of section 101(a)(15)(S), or that of any family mem13 ber of such a nonimmigrant who is provided non14 immigrant status pursuant to such section, must be 

15 protected, such official may take such lawful action 

16 as the official considers necessary to effect such pro17 tection.’’. 

18 SEC. 656. ADJUSTMENT OF STATUS WHEN NEEDED TO PRO19 TECT INFORMANTS. 

20 Section 245(j) (8 U.S.C. 1255(j)) is amended— 

21 (1) in paragraph (3), by striking ‘‘(1) or (2),’’ 

22 and inserting ‘‘(1), (2), (3), or (4),’’; 

23 (2) by redesignating paragraph (3) as para24 graph (5); 


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1 (3) by inserting after paragraph (2) the fol2 lowing: 

3 ‘‘(3) if, in the opinion of the Secretary of 

4 Homeland Security, the Secretary of State, or the 

5 Attorney General— 

6 ‘‘(A) a nonimmigrant admitted into the 

7 United States under section 101(a)(15)(S)(iii) 

8 has supplied information described in subclause 

9 (I) of such section; and 

10 ‘‘(B) the provision of such information has 

11 substantially contributed to the success of a 

12 commercial alien smuggling investigation or an 

13 investigation of the sale or production of fraud14 ulent documents to be used for entering or re15 maining in the United States unlawfully, the 

16 disruption of such an enterprise, or the pros17 ecution of an individual described in subclause 

18 (III) of that section, 

19 the Secretary of Homeland Security may adjust the 

20 status of the alien (and the spouse, children, mar21 ried and unmarried sons and daughters, and parents 

22 of the alien if admitted under that section) to that 

23 of an alien lawfully admitted for permanent resi24 dence if the alien is not described in section 

25 212(a)(3)(E). 


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1 ‘‘(4) The Secretary of Homeland Security may 

2 adjust the status of a nonimmigrant admitted into 

3 the United States under section 101(a)(15)(S)(iii) 

4 (and the spouse, children, married and unmarried 

5 sons and daughters, and parents of the non6 immigrant if admitted under that section) to that of 

7 an alien lawfully admitted for permanent residence 

8 on the basis of a recommendation of the Secretary 

9 of State or the Attorney General.’’; and 

10 (4) by adding at the end the following: 

11 ‘‘(6) If the Secretary of Homeland Security, the 

12 Secretary of State, or the Attorney General deter13 mines that a person whose status is adjusted under 

14 this subsection must be protected, such official may 

15 take such lawful action as the official considers nec16 essary to effect such protection.’’. 

17 SEC. 657. REWARDS PROGRAM. 

18 (a) REWARDS PROGRAM.—Section 274 (8 U.S.C. 

19 1324) is amended by adding at the end the following: 

20 ‘‘(e) REWARDS PROGRAM.— 

21 ‘‘(1) IN GENERAL.—There is established in the 

22 Department of Homeland Security a program for 

23 the payment of rewards to carry out the purposes of 

24 this section. 


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1 ‘‘(2) PURPOSE.—The rewards program shall be 

2 designed to assist in the elimination of commercial 

3 operations to produce or sell fraudulent documents 

4 to be used for entering or remaining in the United 

5 States unlawfully and to assist in the investigation, 

6 prosecution, or disruption of a commercial alien 

7 smuggling operation. 

8 ‘‘(3) ADMINISTRATION.—The rewards program 

9 shall be administered by the Secretary of Homeland 

10 Security, in consultation, as appropriate, with the 

11 Attorney General and the Secretary of State. 

12 ‘‘(4) REWARDS AUTHORIZED.—In the sole dis13 cretion of the Secretary of Homeland Security, such 

14 Secretary, in consultation, as appropriate, with the 

15 Attorney General and the Secretary of State, may 

16 pay a reward to any individual who furnishes infor17 mation or testimony leading to— 

18 ‘‘(A) the arrest or conviction of any indi19 vidual conspiring or attempting to produce or 

20 sell fraudulent documents to be used for enter21 ing or remaining in the United States unlaw22 fully or to commit an act of commercial alien 

23 smuggling involving the transportation of 

24 aliens; 


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1 ‘‘(B) the arrest or conviction of any indi2 vidual committing such an act; 

3 ‘‘(C) the arrest or conviction of any indi4 vidual aiding or abetting the commission of 

5 such an act; 

6 ‘‘(D) the prevention, frustration, or favor7 able resolution of such an act, including the dis8 mantling of an operation to produce or sell 

9 fraudulent documents to be used for entering or 

10 remaining in the United States, or commercial 

11 alien smuggling operations, in whole or in sig12 nificant part; or 

13 ‘‘(E) the identification or location of an in14 dividual who holds a key leadership position in 

15 an operation to produce or sell fraudulent docu16 ments to be used for entering or remaining in 

17 the United States unlawfully or a commercial 

18 alien smuggling operation involving the trans19 portation of aliens. 

20 ‘‘(5) AUTHORIZATION OF APPROPRIATIONS.— 

21 There are authorized to be appropriated such sums 

22 as may be necessary to carry out this subsection. 

23 Amounts appropriated under this paragraph shall 

24 remain available until expended. 


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1 ‘‘(6) INELIGIBILITY.—An officer or employee of 

2 any Federal, State, local, or foreign government 

3 who, while in performance of his or her official du4 ties, furnishes information described in paragraph 

5 (4) shall not be eligible for a reward under this sub6 section for such furnishing. 

7 ‘‘(7) PROTECTION MEASURES.—If the Secretary 

8 of Homeland Security, the Secretary of State, or the 

9 Attorney General determines that an individual who 

10 furnishes information or testimony described in 

11 paragraph (4), or any spouse, child, parent, son, or 

12 daughter of such an individual, must be protected, 

13 such official may take such lawful action as the offi14 cial considers necessary to effect such protection. 

15 ‘‘(8) LIMITATIONS AND CERTIFICATION.— 

16 ‘‘(A) MAXIMUM AMOUNT.—No reward 

17 under this subsection may exceed $100,000, ex18 cept as personally authorized by the Secretary 

19 of Homeland Security. 

20 ‘‘(B) APPROVAL.—Any reward under this 

21 subsection exceeding $50,000 shall be person22 ally approved by the Secretary of Homeland Se23 curity. 

24 ‘‘(C) CERTIFICATION FOR PAYMENT.—Any 

25 reward granted under this subsection shall be 


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1 certified for payment by the Secretary of Home2 land Security.’’. 

3 SEC. 658. OUTREACH PROGRAM. 

4 Section 274 (8 U.S.C. 1324), as amended by sub5 section (a), is further amended by adding at the end the 

6 following: 

7 ‘‘(f) OUTREACH PROGRAM.—The Secretary of Home8 land Security, in consultation, as appropriate, with the At9 torney General and the Secretary of State, shall develop 

10 and implement an outreach program to educate the public 

11 in the United States and abroad about— 

12 ‘‘(1) the penalties for— 

13 ‘‘(A) bringing in and harboring aliens in 

14 violation of this section; and 

15 ‘‘(B) participating in a commercial oper16 ation for making, or trafficking in, documents 

17 to be used for entering or remaining in the 

18 United States unlawfully; and 

19 ‘‘(2) the financial rewards and other incentives 

20 available for assisting in the investigation, disrup21 tion, or prosecution of a commercial smuggling oper22 ation or a commercial operation for making, or traf23 ficking in, documents to be used for entering or re24 maining in the United States unlawfully.’’. 


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1 TITLE VII—EMPLOYMENT-BASED 

2 IMMIGRATION 

3 SEC. 701. UNFAIR IMMIGRATION-RELATED EMPLOYMENT 

4 PRACTICES. 

5 Section 274B (8 U.S.C. 1324b) is amended— 

6 (1) in subsection (a)(5)— 

7 (A) by amending the paragraph heading to 

8 read ‘‘PROHIBITION OF INTIMIDATION, RETAL9 IATION, OR UNLAWFUL DISCRIMINATION IN

10 EMPLOYMENT’’; 

11 (B) by moving the text down and to the 

12 right 2 ems; 

13 (C) by inserting before such text the fol14 lowing: ‘‘(A) IN GENERAL.—’’; and 

15 (D) by adding at the end the following: 

16 ‘‘(B) FEDERAL LABOR OR EMPLOYMENT

17 LAWS.—It is an unfair employment practice for 

18 any employer to directly or indirectly threaten 

19 any individual with removal or any other ad20 verse consequences pertaining to that individ21 ual’s immigration status or employment bene22 fits for the purpose of intimidating, pressuring, 

23 or coercing any such individual not to exercise 

24 any right protected by State or Federal labor or 

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1 tional Labor Relations Act (29 U.S.C. 157)), or 

2 for the purpose of retaliating against any such 

3 individual for having exercised or having stated 

4 an intention to exercise any such right. 

5 ‘‘(C) DISCRIMINATION BASED ON IMMIGRA6 TION STATUS.—It is an unfair employment 

7 practice for any employer, except to the extent 

8 specifically authorized or required by law, to 

9 discriminate in any term or condition of em10 ployment against any individual employed by 

11 such employer on the basis of such individual’s 

12 immigration status.’’; and 

13 (2) in subsection (c)(2), by adding at the end 

14 the following: ‘‘The Special Counsel shall not dis15 close to the Secretary of Homeland Security or any 

16 other government agency or employee, and shall not 

17 cause to be published in a manner that discloses to 

18 the Secretary of Homeland Security or any other 

19 government agency or employee, any information ob20 tained by the Special Counsel in any manner con21 cerning the immigration status of any individual who 

22 has filed a charge under this section, or the identity 

23 of any individual or entity that is a party or witness 

24 to a proceedings brought pursuant to such charge. 

25 The Secretary of Homeland Security may not rely, 


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1 in whole or in part, in any enforcement action or re2 moval proceeding, upon any information obtained as 

3 a result of the filing or prosecution of an unfair im4 migration-related employment practice charge. For 

5 purposes of this paragraph, the term ‘Special Coun6 sel’ includes individuals formerly appointed to the 

7 position of Special Counsel and any current or 

8 former employee of the office of the Special Counsel. 

9 Whoever knowingly uses, publishes, or permits infor10 mation to be used in violation of this paragraph 

11 shall be fined not more than $10,000.’’. 

12 SEC. 702. DEPARTMENT OF LABOR TASK FORCE. 

13 The Secretary of Labor, in consultation with the At14 torney General and the Secretary of Homeland Security, 

15 shall conduct a national study of American workplaces to 

16 determine the causes, extent, circumstances, and con17 sequences, of exploitation of undocumented alien workers 

18 by their employers. As part of this study, the Secretary 

19 of Labor shall create a plan for targeted review of Federal 

20 labor law enforcement in industries with a substantial im21 migrant workforce, for the purpose of identifying, moni22 toring, and deterring frequent or egregious violators of 

23 wage and hour, antidiscrimination, National Labor Rela24 tions Act, and workplace safety and health requirements. 

25 Not later than 18 months after the date of the enactment 


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1 of this Act, the Secretary of Labor shall submit to the 

2 Congress a report describing the results of the study and 

3 the Secretary’s recommendations based on the study. 

4 SEC. 703. RECRUITMENT OF AMERICAN WORKERS. 

5 Section 214 is amended— 

6 (1) by redesignating subsections (m) (as added 

7 by section 105 of Public Law 106–313), (n) (as 

8 added by section 107(e) of Public Law 106–386), 

9 (o) (as added by section 1513(c) of Public Law 106– 

10 386), (o) (as added by section 1102(b) of the Legal 

11 Immigration Family Equity Act), and (p) (as added 

12 by section 1503(b) of the Legal Immigration Family 

13 Equity Act) as subsections (n), (o), (p), (q), and (r), 

14 respectively; and 

15 (2) by adding at the end the following: 

16 ‘‘(s)(1) No petition to accord employment status 

17 under the nonimmigrant classifications described in sec18 tions 101(a)(15)(E)(iii) and (H) shall be granted in the 

19 absence of an affidavit from the petitioner describing the 

20 efforts that were made to recruit an alien lawfully admit21 ted for permanent residence or a citizen of the United 

22 States before resorting to a petition to obtain a foreign 

23 employee. The recruitment efforts must have included sub24 stantial attempts to find employees in minority commu25 nities. Recruitment efforts in minority communities should 


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1 include at least one of the following, if appropriate for the 

2 employment being advertised: 

3 ‘‘(A) Advertise the availability of the job oppor4 tunity for which the employer is seeking a worker in 

5 local newspapers in the labor market that is likely 

6 to be patronized by a potential worker for at least 

7 5 consecutive days. 

8 ‘‘(B) Undertake efforts to advertise the avail9 ability of the job opportunity for which the employer 

10 is seeking a worker through advertisements in public 

11 transportation systems. 

12 ‘‘(C) To the extent permitted by local laws and 

13 regulations, engage in recruitment activities in sec14 ondary schools, recreation centers, community cen15 ters, and other places throughout the communities 

16 within 50 miles of the job site that serve minorities. 

17 ‘‘(2)(A) The Secretary of Homeland Security shall 

18 impose a 10 percent surcharge on all fees collected for pe19 titions to accord employment status and shall use these 

20 funds to establish an employment training program which 

21 will include unemployed workers in the United States who 

22 need to be trained or retrained. The purpose of this pro23 gram shall be to increase the number of lawful permanent 

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1 jects of such petitions. At least 50 percent of the funds 

2 generated by this provision must be used to train Amer3 ican workers in rural and inner-city areas. 

4 ‘‘(B) The Secretary of Homeland Security shall re5 serve and make available to the Secretary of Labor a por6 tion of the funds collected under this paragraph. Such 

7 funds shall be used by the Secretary of Labor to establish 

8 an ‘Office to Preserve American Jobs’ within the Depart9 ment of Labor. The purpose of this office shall be to estab10 lish policies intended to ensure that employers in the 

11 United States will hire available workers in the United 

12 States before resorting to foreign labor, giving substantial 

13 emphasis to hiring minority workers in the United 

14 States.’’. 

15 TITLE VIII—FAIRNESS IN 

16 REMOVAL PROCEEDINGS 

17 SEC. 801. RIGHT TO COUNSEL. 

18 Section 292 (8 U.S.C. 1362) is amended by striking 

19 the matter after the section designation and inserting the 

20 following: ‘‘In any bond, custody, detention, or removal 

21 proceedings before the Attorney General and in any appeal 

22 proceedings before the Attorney General from any such 

23 proceedings, the person concerned shall have the privilege 

24 of being represented (at no expense to the government) 

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1 ceedings, as he shall choose. With consent of their clients, 

2 counsel may enter appearances limited to bond, custody, 

3 or other specific proceedings.’’. 

4 SEC. 802. PRESUMPTION IN FAVOR OF WITHDRAWAL OF AP5 PLICATION FOR ADMISSION. 

6 Section 235(a)(4) (8 U.S.C. 1225(a)(4)) is amended 

7 to read as follows: 

8 ‘‘(4) WITHDRAWAL OF APPLICATION FOR AD9 MISSION.— 

10 ‘‘(A) PRESUMPTION IN FAVOR OF WITH11 DRAWAL.—The Attorney General shall permit 

12 an alien applying for admission to withdraw the 

13 application and depart immediately from the 

14 United States at any time, unless an immigra15 tion judge has rendered a decision with respect 

16 to the admissibility of the alien, except that the 

17 Attorney General may deny permission for the 

18 withdrawal when warranted by unusual cir19 cumstances. 

20 ‘‘(B) PERMISSIVE WITHDRAWAL.—Except 

21 as provided in subparagraph (A), an alien ap22 plying for admission may, in the discretion of 

23 the Attorney General and at any time after a 

24 decision described in such subparagraph has 

25 been rendered, be permitted to withdraw the 


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1 application and depart immediately from the 

2 United States.’’. 

3 SEC. 803. ABSENCES OUTSIDE THE CONTROL OF THE 

4 ALIEN. 

5 Section 101(a)(13)(C) (8 U.S.C. 1101(a)(13)(C)) is 

6 amended by amending clause (ii) to read as follows: 

7 ‘‘(ii) has been absent from the United 

8 States for a continuous period in excess of 

9 one year unless the alien’s return was im10 peded by emergency or extenuating cir11 cumstances outside the control of the 

12 alien,’’. 

13 SEC. 804. REINSTATEMENT OF REMOVAL ORDERS AGAINST 

14 ALIENS ILLEGALLY REENTERING. 

15 Section 241(a)(5) (8 U.S.C. 1231(a)(5)) is amend16 ed— 

17 (1) by inserting ‘‘, after a hearing by an immi18 gration judge,’’ after ‘‘If’’; 

19 (2) by inserting ‘‘, on or after September 30, 

20 1996,’’ after ‘‘alien has’’; 

21 (3) by striking ‘‘is reinstated’’ and inserting 

22 ‘‘may be deemed to be reinstated’’; 

23 (4) by striking ‘‘and is not subject’’ and all that 

24 follows through ‘‘under this Act’’; and 


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1 (5) by striking the period at the end and insert2 ing the following: ‘‘subject to reopening and review 

3 of the previous order. Nothing in this section shall 

4 preclude an alien from applying for any relief from 

5 removal under this Act.’’. 

6 SEC. 805. PERMANENT APPLICATION OF SECTION 245(i). 

7 Section 245(i) (8 U.S.C. 1255(i)) is amended— 

8 (1) by inserting ‘‘and’’ at the end of paragraph 

9 (1)(A); 

10 (2) by amending paragraph (1)(B) to read as 

11 follows: 

12 ‘‘(B) who is the beneficiary (including a 

13 spouse or child of the principal alien) of— 

14 ‘‘(i) a petition for classification under 

15 section 204; or 

16 ‘‘(ii) an application for a labor certifi17 cation under section 212(a)(5)(A);’’; 

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

19 (4) by striking ‘‘Attorney General’’ each place 

20 such term appears and inserting ‘‘Secretary of 

21 Homeland Security’’. 


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1 SEC. 806. DISCRETIONARY WAIVER OF INADMISSIBILITY 

2 BASED ON UNLAWFUL PRESENCE, FAILURE 

3 TO ATTEND REMOVAL PROCEEDINGS, AND 

4 MISREPRESENTATIONS. 

5 (a) IN GENERAL.—Section 212(i) (8 U.S.C. 1182(i)) 

6 is amended to read as follows: 

7 ‘‘(i) The Secretary of Homeland Security may waive 

8 the application of subparagraph (A)(i) or (B), or clause 

9 (i) or (ii) of subparagraph (C), of subsection (a)(6) in the 

10 case of an immigrant who is the parent, spouse, child, son, 

11 or daughter of a United States citizen or of an alien law12 fully admitted to the United States for permanent resi13 dence, if it is established to the satisfaction of the Sec14 retary that the refusal of admission to the United States 

15 of such immigrant would result in hardship to the immi16 grant or to such citizen or lawful permanent resident par17 ent, spouse, child, son, or daughter.’’. 

18 (b) CONFORMING AMENDMENTS.—Section 212(a)(6) 

19 (8 U.S.C. 1182(a)(6)) is amended— 

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

21 the following: 

22 ‘‘(iii) WAIVER AUTHORIZED.—For a 

23 provision authorizing the waiver of clause 

24 (i), see subsection (i).’’; 

25 (2) in subparagraph (B)— 


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1 (A) by inserting ‘‘(i)’’ after the subpara2 graph heading; and 

3 (B) by adding at the end the following: 

4 ‘‘(ii) WAIVER AUTHORIZED.—For a 

5 provision authorizing the waiver of clause 

6 (i), see subsection (i).’’; and 

7 (3) in subparagraph (C)(iii), by inserting ‘‘or 

8 (ii)’’ after ‘‘(i)’’. 

9 SEC. 807. WAIVER OF INADMISSIBILITY FOR MINOR CRIMI10 NAL OFFENSES. 

11 Section 212(h) (8 U.S.C. 1182(h)) is amended— 

12 (1) in the matter preceding paragraph (1), by 

13 striking ‘‘offense of simple possession of 30 grams or 

14 less of marijuana’’ and inserting ‘‘controlled sub15 stance offense for which the alien was not incarcer16 ated for a period exceeding 1 year’’; and 

17 (2) by striking the final two sentences. 

18 SEC. 808. GENERAL WAIVER FOR ALIENS PREVIOUSLY RE19 MOVED AND FOR THE UNLAWFUL PRESENCE 

20 BARS. 

21 (a) IN GENERAL.—Section 212(d) (8 U.S.C. 

22 1182(d)) is amended by adding at the end the following: 

23 ‘‘(14) The Secretary of Homeland Security may, in 

24 the discretion of the Secretary, for humanitarian purposes, 

25 to assure family unity, or when it is otherwise in the public 


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1 interest, waive the application of subparagraph (A) or 

2 (B)(i) of subsection (a)(9).’’. 

3 (b) CONFORMING AMENDMENT.—Section 

4 212(a)(9)(B) of such Act (8 U.S.C. 1182(a)(9)(B)) is 

5 amended by striking clause (v). 

6 SEC. 809. WAIVER OF AGGRAVATED FELONY CON7 SEQUENCES. 

8 Section 101 (8 U.S.C. 1101) is amended by adding 

9 at the end the following: 

10 ‘‘(j) For purposes of this Act, and notwithstanding 

11 subsection (a)(43), the Secretary of Homeland Security 

12 may treat any conviction that did not result in incarcer13 ation for more than 1 year as if such conviction were not 

14 a conviction for an aggravated felony. This discretion may 

15 be exercised for humanitarian purposes, to assure family 

16 unity, or when it is otherwise in the public interest.’’. 

17 SEC. 810. DISCRETIONARY WAIVER TO ADMIT PERSONS IN 

18 UNUSUAL CIRCUMSTANCES. 

19 (a) NEW GENERAL WAIVER.—Section 212(d) (8 

20 U.S.C. 1182(d)) is amended by adding at the end the fol21 lowing: 

22 ‘‘(13) The Secretary of Homeland Security 

23 may, in the discretion of such Secretary for humani24 tarian purposes, to assure family unity, or when it 

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1 tion of subparagraph (B) or (G) of subsection 

2 (a)(6), clause (i) or (ii) of subsection (a)(9)(A), or 

3 subsection (a)(9)(B)(i), in unusual circumstances. 

4 For purposes of the preceding sentence, an instance 

5 of battering or extreme cruelty is deemed to con6 stitute unusual circumstances in the case where it is 

7 inflicted on an alien (or a child of an alien) by the 

8 alien’s United States citizen or lawful permanent 

9 resident spouse, parent, child, son, or daughter.’’. 

10 (b) WAIVER FOR ALIENS PREVIOUSLY REMOVED.— 

11 (1) CERTAIN ALIENS PREVIOUSLY REMOVED.— 

12 Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is 

13 amended by adding at the end the following: 

14 ‘‘(iv) WAIVER AUTHORIZED.—For 

15 provision authorizing waiver of clause (i) 

16 or (ii), see subsection (d)(13).’’. 

17 (2) ALIENS UNLAWFULLY PRESENT.—Section 

18 212(a)(9)(B)(v) (8 U.S.C. 1182(A)(9)(B)(v)) is 

19 amended to read as follows: 

20 ‘‘(v) WAIVER AUTHORIZED.—For pro21 vision authorizing waiver of clause (i), see 

22 subsection (d)(13).’’. 


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1 SEC. 811. RESTORATION OF SUSPENSION OF DEPORTA2 TION. 

3 (a) CANCELLATION OF REMOVAL.—Section 

4 240A(a)(3) (8 U.S.C. 1229b(a)(3)) is amended to read as 

5 follows: 

6 ‘‘(3) has not been convicted of an aggravated 

7 felony for which the sentence imposed is five years 

8 or more.’’. 

9 (b) REPEAL OF RULE FOR TERMINATION OF CON10 TINUOUS PERIOD.— 

11 (1) Section 240A(d)(1) (8 U.S.C. 1229b(d)(1)) 

12 (8 U.S.C. 1229b(a)) is repealed. 

13 (2) Section 240A(d) (8 U.S.C. 1229b) is 

14 amended— 

15 (A) by redesignating paragraphs (2) and 

16 (3) as paragraphs (1) and (2), respectively; and 

17 (B) by inserting before the period at the 

18 end of paragraph (1) (as redesignated) the fol19 lowing: ‘‘, unless the alien’s departure from the 

20 United States was due to a temporary trip 

21 abroad required by emergency or extenuating 

22 circumstances outside the control of the alien’’. 

23 (c) CANCELLATION OF REMOVAL AND ADJUSTMENT

24 FOR CERTAIN NONPERMANENT RESIDENTS.—Section 

25 240A(b)(1) (8 U.S.C. 1229b(b)(1)) is amended to read as 

26 follows: 


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1 ‘‘(1) IN GENERAL.—The Attorney General may 

2 cancel removal in the case of an alien who is inad3 missible or deportable from the United States if the 

4 alien— 

5 ‘‘(A) has been physically present in the 

6 United States for a continuous period of— 

7 ‘‘(i) 7 years immediately preceding the 

8 date of application in the case of an 

9 alien— 

10 ‘‘(I) who is deportable on any 

11 ground other than a ground specified 

12 in clause (ii)(I); and 

13 ‘‘(II) whose deportation would, in 

14 the opinion of the Attorney General, 

15 result in extreme hardship to the alien 

16 or the alien’s spouse, child, parent, 

17 son, or daughter, who is a citizen of 

18 the United States or an alien lawfully 

19 admitted for permanent residence; or 

20 ‘‘(ii) 10 years immediately preceding 

21 the date of application in the case of an 

22 alien— 

23 ‘‘(I) who is deportable for convic24 tion of an offense under section 


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1 212(a)(2), 237(a)(2), or 237(a)(3); 

2 and 

3 ‘‘(II) whose deportation would, in 

4 the opinion of the Attorney General, 

5 result in exceptional and extremely 

6 unusual hardship to the alien or the 

7 alien’s spouse, parent, child, son, or 

8 daughter, who is a citizen of the 

9 United States or an alien lawfully ad10 mitted for permanent residence; and 

11 ‘‘(B) has been a person of good moral 

12 character during such period.’’. 

13 (d) ELIMINATION OF ANNUAL LIMITATION.—Section 

14 240A (8 U.S.C. 1229b) is amended by striking subsection 

15 (e). 

16 TITLE IX—REMOVAL GROUNDS 

17 BASED ON CRIMINAL OFFENSES 

18 SEC. 901. DEFINITION OF MORAL TURPITUDE. 

19 (a) EQUITABLE DEFINITION OF ‘‘MORAL TURPI20 TUDE’’.— 

21 (1) CONVICTION OF CERTAIN CRIMES.—Section 

22 212(a)(2)(A)(i) (8 U.S.C. 1182(a)(2)(A)(i)) is 

23 amended by striking ‘‘of, or who admits having com24 mitted, or who admits committing acts which conVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 stitute the essential elements of—’’ and inserting 

2 ‘‘of—’’. 

3 (2) EXCEPTION.—Section 212(a)(2)(A)(ii)(II) 

4 (8 U.S.C. 1182(a)(2)(A)(ii)(II)) is amended— 

5 (A) by striking ‘‘the maximum’’ and all 

6 that follows through ‘‘such crime,’’; and 

7 (B) by striking ‘‘6 months’’ and inserting 

8 ‘‘1 year’’. 

9 (b) EQUITABLE DEFINITION OF ‘‘CRIMES OF MORAL

10 TURPITUDE’’.—Section 237(a)(2)(A)(i)(II) (8 U.S.C. 

11 1227(a)(2)(A)(i)(II)) is amended to read as follows: 

12 ‘‘(II) for which the alien has been 

13 incarcerated for a period exceeding 

14 one year,’’. 

15 SEC. 902. ‘‘AGGRAVATED FELONY’’ DEFINITIONS. 

16 (a) IN GENERAL.—Section 101(a)(43) (8 U.S.C. 

17 1101(a)(43)) is amended by striking ‘‘The term ‘aggra18 vated felony’ means’’ and inserting ‘‘Aggravated felony 

19 means a felony’’. 

20 (b) ILLICIT TRAFFICKING.—Section 101(a)(43)(B) 

21 (8 U.S.C. 1101(a)(43)(B)) is amended by striking 

22 ‘‘Code);’’ and inserting ‘‘Code), except it does not include 

23 simple possession of a controlled substance;’’. 

24 (c) CRIMES OF VIOLENCE AND THEFT OFFENSES.— 

25 Subparagraphs (F), (G), (R), and (S) of section 


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1 101(a)(43) (8 U.S.C. 1101(a)(43)(F), (G), (R), and (S)) 

2 are each amended by striking ‘‘imprisonment’’ and all that 

3 follows through the semicolon and inserting ‘‘imprison4 ment of more than five years;’’. 

5 (d) CORRUPT ORGANIZATIONS AND GAMBLING OF6 FENSES.—Section 101(a)(43)(J) is amended by inserting 

7 ‘‘more than five years’’ after the words ‘‘sentence of’’. 

8 (e) ALIEN SMUGGLING.—Section 101(a)(43)(N) (8 

9 U.S.C. 101(a)(43)(N)) is amended— 

10 (1) by inserting ‘‘committed for the purpose of 

11 commercial advantage,’’ after ‘‘smuggling),’’; and 

12 (2) by adding at the end a semicolon. 

13 (f) DISCRETIONARY WAIVER IN CASES OF OTHER

14 MINOR FELONIES.—Section 101 (8 U.S.C. 1101) is 

15 amended by adding at the end the following: 

16 SEC. 903. DEFINITIONS OF ‘‘CONVICTION’’ AND ‘‘TERM OF 

17 IMPRISONMENT’’. 

18 Section 101(a)(48) (8 U.S.C. 1101(a)(48)) is amend19 ed— 

20 (1) in subparagraph (A), by striking ‘‘court’’ 

21 and all that follows through the period at the end 

22 and inserting ‘‘court. An adjudication or judgment 

23 of guilt that has been expunged, deferred, annulled, 

24 invalidated, withheld, or vacated, an order of proba25 tion without entry of judgment, or any similar disVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 position shall not be considered a conviction for pur2 poses of this Act.’’; and 

3 (2) in subparagraph (B)— 

4 (A) by inserting ‘‘only’’ after ‘‘deemed to 

5 include’’; and 

6 (B) by striking ‘‘court of law’’ and all that 

7 follows through the period at the end and in8 serting ‘‘court of law. Any such reference shall 

9 not be deemed to include any suspension of the 

10 imposition or execution of that imprisonment or 

11 sentence in whole or in part.’’. 

12 ‘‘(i) For purposes of this Act, and notwithstanding 

13 subsection (a)(43), the Attorney General may treat any 

14 conviction that did not result in incarceration for more 

15 than 1 year as if such conviction were not a conviction 

16 for an aggravated felony.’’. 

17 SEC. 904. ELIMINATING RETROACTIVE CHANGES IN RE18 MOVAL GROUNDS. 

19 (a) APPLICATION OF AGGRAVATED FELONY DEFINI20 TION.—The last sentence of section 101(a)(43) (8 U.S.C. 

21 1101(a)(43)) is amended to read as follows: ‘‘The term 

22 shall not apply to any offense that was not covered by 

23 the term on the date on which the offense occurred.’’. 


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1 (b) GROUNDS OF DEPORTABILITY.—Section 237 (8 

2 U.S.C. 1227) is amended by adding at the end the fol3 lowing new subsection: 

4 ‘‘(d) Notwithstanding any other provision of this sec5 tion, an alien is not deportable by reason of committing 

6 any offense that was not a ground of deportability on the 

7 date the offense occurred.’’. 

8 (c) GROUNDS OF INADMISSIBILITY.—Section 212 (8 

9 U.S.C. 1182) is amended by adding at the end the fol10 lowing new subsection: 

11 ‘‘(p) Notwithstanding any other provision of this sec12 tion, an alien is not inadmissible by reason of committing 

13 any offense that was not a ground of inadmissibility on 

14 the date the offense occurred.’’. 

15 SEC. 905. ELIMINATING UNFAIR RETROACTIVE CHANGES IN 

16 REMOVAL RULES FOR PERSONS PREVIOUSLY 

17 REMOVED. 

18 (a) IN GENERAL.—The Attorney General shall estab19 lish a process by which an alien described in subsection 

20 (b) may apply for reopening a proceeding so as to seek 

21 relief from exclusion, deportation, or removal under sec22 tion 212(c) of the Immigration and Nationality Act, as 

23 such section was in effect prior to the enactment of the 

24 Antiterrorism and Effective Death Penalty Act of 1996, 


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1 or section 240A of the Immigration and Nationality Act, 

2 as amended by this Act. 

3 (b) ALIEN DESCRIBED.—An alien referred to in sub4 section (a) is an alien who received a final order of exclu5 sion, deportation, or removal, or a decision on a petition 

6 for review or petition for habeas corpus, on or after Sep7 tember 30, 1996, and who was— 

8 (1) excluded, deported, or removed from the 

9 United States by reason of having committed a 

10 criminal offense that was not a basis for removal, 

11 exclusion, or deportation on the date on which the 

12 offense was committed; 

13 (2) excluded, deported, or removed from the 

14 United States by reason of having committed a 

15 criminal offense that is not a basis for removal, ex16 clusion, or deportation on the date of enactment of 

17 this Act; or 

18 (3) excluded, deported, or removed from the 

19 United States by reason of having committed a 

20 criminal offense prior to April 24, 1996, for which 

21 there was relief from exclusion, deportation, or re22 moval available prior to such date. 

23 (c) PAROLE.—The Attorney General may in her dis24 cretion exercise the parole authority under section 

25 212(d)(5)(A) of the Immigration and Nationality Act (8 


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1 U.S.C. 1182(d)(5)(A)) for the purpose of permitting 

2 aliens excluded, deported, or removed from the United 

3 States to participate in the process established under sub4 section (a), if the alien establishes prima facie eligibility 

5 for the relief. 

6 TITLE X—DIVERSITY VISAS 

7 SEC. 1001. INCREASE IN WORLDWIDE LEVEL OF DIVERSITY 

8 IMMIGRANTS. 

9 Section 201(e) (8 U.S.C. 1151(e)) is amended by 

10 striking ‘‘55,000’’ and inserting ‘‘110,000’’. 

11 TITLE XI—HAITIAN PARITY 

12 SEC. 1101. ADJUSTMENT OF STATUS FOR HAITIANS. 

13 (a) IN GENERAL.—Chapter 5 of title II (8 U.S.C. 

14 1255 et seq.), as amended by section 202, is further 

15 amended by inserting after section 245C the following: 

16 ‘‘ADJUSTMENT OF STATUS OF CERTAIN HAITIAN

17 NATIONALS

18 ‘‘SEC. 245D. Notwithstanding the provisions of sec19 tion 245(c), the status of any alien who is a national or 

20 citizen of Haiti, and who has been physically present in 

21 the United States for at least one year, may be adjusted 

22 by the Secretary of Homeland Security, in the Secretary’s 

23 discretion and under such regulations as the Secretary 

24 may prescribe, to that of an alien lawfully admitted for 

25 permanent residence, if the alien makes an application for 

26 such adjustment and the alien is eligible to receive an imVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 migrant visa and is admissible to the United States for 

2 permanent residence. Upon approval of such an applica3 tion for adjustment of status, the Secretary shall create 

4 a record of the alien’s admission for permanent residence 

5 as of a date 30 months prior to the filing of such an appli6 cation or the date of the alien’s last arrival into the United 

7 States, whichever date is later. The provisions of this Act 

8 shall be applicable to the spouse and child of any alien 

9 described in this section, regardless of their citizenship 

10 and place of birth, if the spouse or child is residing with 

11 such alien in the United States.’’. 

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

13 as amended by section 202, is further amended by insert14 ing after the item relating to section 245C the following: 

‘‘Sec. 245D. Adjustment of status of certain Haitian nationals.’’. 

15 (c) SUNSET.—The amendments made by this section 

16 shall cease to be effective on the date that is 3 years after 

17 the date of the enactment of this Act. 

18 SEC. 1102. LIMITATION OF ATTORNEY GENERAL’S BOND 

19 DISCRETION. 

20 Section 236 (8 U.S.C. 1226) is amended by adding 

21 at the end the following: 

22 ‘‘(f) EXERCISE OF AUTHORITY FOR ARREST, DETEN23 TION, AND RELEASE.—The Secretary of Homeland Secu24 rity shall exercise the discretion afforded under subsection 

25 (a) on a case-by-case basis. If bond is to be denied on 


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1 the ground that the alien’s release would give rise to ad2 verse consequences for national security or national immi3 gration policy, the finding of such adverse consequences 

4 shall be based on circumstances pertaining to the indi5 vidual alien whose release is being considered.’’. 

6 SEC. 1103. ELIMINATION OF MANDATORY DETENTION IN 

7 EXPEDITED REMOVAL PROCEEDINGS. 

8 Section 235(b)(1)(B)(iii)(IV) (8 U.S.C. 

9 1225(b)(1)(B)(iii)(IV)) is amended to read as follows: 

10 ‘‘(IV) DETENTION.—Aliens sub11 ject to the procedures under this 

12 clause shall be detained in accordance 

13 with section 236.’’. 

14 SEC. 1104. AMENDMENTS TO HAITIAN AND IMMIGRANT 

15 FAIRNESS ACT OF 1998. 

16 (a) GROUND FOR INADMISSIBILITY FOR DOCUMENT

17 FRAUD DOES NOT APPLY.—The Haitian Refugee Immi18 gration Fairness Act of 1998 (8 U.S.C. 1255 note) is 

19 amended in subsections (a)(1)(B) and (d)(1)(D) of section 

20 902 by inserting ‘‘(6)(C)(i),’’ after ‘‘(6)(A),’’. 

21 (b) DETERMINATIONS WITH RESPECT TO CHIL22 DREN.—Section 902(d) of such Act is amended by adding 

23 at the end the following: 

24 ‘‘(3) DETERMINATIONS WITH RESPECT TO

25 CHILDREN.— 


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1 ‘‘(A) USE OF APPLICATION FILING

2 DATE.—Determinations made under this sub3 section as to whether an individual is a child of 

4 a parent shall be made using the age and status 

5 of the individual on the date of the enactment 

6 of this section. 

7 ‘‘(B) APPLICATION SUBMISSION BY PAR8 ENT.—Notwithstanding paragraph (1)(C), an 

9 application under this subsection filed based on 

10 status as a child may be filed for the benefit of 

11 such child by a parent or guardian of the child, 

12 if the child is physically present in the United 

13 States on such filing date.’’. 

14 SEC. 1105. NEW APPLICATIONS AND MOTIONS TO REOPEN. 

15 (a) NEW APPLICATIONS.—Notwithstanding section 

16 902(a)(1)(A) of the Haitian and Immigrant Fairness Act 

17 of 1998, an alien who is eligible for adjustment of status 

18 under such Act, as amended by section 804 of this Act, 

19 may submit an application for adjustment of status under 

20 such Act not later than the later of— 

21 (1) 2 years after the date of the enactment of 

22 this Act; and 

23 (2) 1 year after the date on which final regula24 tions implementing section 804 are promulgated. 


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1 (b) MOTIONS TO REOPEN.—The Secretary of Home2 land Security shall establish procedures for the reopening 

3 and reconsideration of applications for adjustment of sta4 tus under the Haitian Refugee Immigration Fairness Act 

5 of 1998 that are affected by the amendments under sec6 tion 804 of this Act. 

7 (c) RELATIONSHIP OF APPLICATION TO CERTAIN OR8 DERS.—Section 902(a)(3) of the Haitian and Immigrant 

9 Fairness Act of 1998 shall apply to an alien present in 

10 the United States who has been ordered excluded, de11 ported, removed, or ordered to depart voluntarily, and who 

12 files an application under subsection (a), or a motion 

13 under subsection (b), in the same manner as such section 

14 902(a)(3) applied to aliens filing applications for adjust15 ment of status under such Act before April 1, 2000. 

16 SEC. 1106. TEMPORARY PROTECTED STATUS FOR HAI17 TIANS. 

18 It is the sense of the Congress that the Secretary of 

19 Homeland Security should be more liberal with respect to 

20 Haiti in deciding whether to designate that country for 

21 temporary protected status under section 244(b)(1)(A) of 

22 the Immigration and Nationality (8 U.S.C. 

23 1254(b)(1)(A)). It is the sense of the Congress that this 

24 decision has sometimes been made without due regard to 

25 the serious threat to personal safety that results from 


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1 sending Haitians back to Haiti during a period of ongoing 

2 armed conflict in that country. 

3 TITLE XII—FAIRNESS IN ASYLUM 

4 AND REFUGEE PROCEEDINGS 

5 SEC. 1201. REFUGEE STATUS FOR UNMARRIED SONS AND 

6 DAUGHTERS OF REFUGEES. 

7 Section 207(c)(2) (8 U.S.C. 1157(c)(2)) is amended 

8 by adding at the end the following: 

9 ‘‘(C) When warranted by unusual cir10 cumstances or to preserve family unity, the At11 torney General may, in the Attorney General’s 

12 discretion, consider an unmarried son or daugh13 ter of a refugee to be a child of the refugee for 

14 purposes of this paragraph.’’. 

15 SEC. 1202. ASYLEE STATUS FOR UNMARRIED SONS AND 

16 DAUGHTERS OF ASYLEES. 

17 Section 208(b)(3) (8 U.S.C. 1158(b)(3)) is amended 

18 by adding at the end the following: 

19 ‘‘(C) When warranted by unusual cir20 cumstances or to preserve family unity, the At21 torney General may, in the Attorney General’s 

22 discretion, consider an unmarried son or daugh23 ter of an alien who is granted asylum under 

24 this subsection to be a child of the alien for 

25 purposes of this paragraph.’’. 


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1 SEC. 1203. ELIMINATION OF ARBITRARY TIME LIMITS ON 

2 ASYLUM APPLICATIONS. 

3 Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amend4 ed— 

5 (1) by striking subparagraph (B); 

6 (2) in subparagraph (C), by striking ‘‘(D),’’ and 

7 inserting ‘‘(C),’’; 

8 (3) in subparagraph (D)— 

9 (A) by striking ‘‘subparagraphs (B) and 

10 (C),’’ and inserting ‘‘subparagraph (B),’’; 

11 (B) by striking ‘‘either’’; and 

12 (C) by striking ‘‘asylum or extraordinary’’ 

13 and all that follows through the period at the 

14 end and inserting ‘‘asylum.’’; and 

15 (4) by redesignating subparagraphs (C) and 

16 (D) as subparagraphs (B) and (C), respectively. 

17 SEC. 1204. GENDER-BASED PERSECUTION. 

18 (a) TREATMENT AS REFUGEE.—Section 101(a)(42) 

19 (8 U.S.C. 1101(a)(42)) is amended by adding at the end 

20 the following: 

21 ‘‘(C) For purposes of determinations under 

22 this Act, a person who establishes that he or 

23 she suffered persecution in the past, or has a 

24 well-founded fear of persecution, on account of 

25 gender shall be considered to have suffered per26 secution, or to have a well-founded fear of perVerDate Nov 24 2008 00:50 Jan 11, 2009 Jkt 079200 PO 00000 Frm 00106 Fmt 6652 Sfmt 6201 E:\BILLS\H264.IH H264

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1 secution, on account of membership in a par2 ticular social group.’’. 

3 (b) RESTRICTION ON REMOVAL TO COUNTRY WHERE

4 ALIEN WOULD BE THREATENED.—Section 241(b)(3) of 

5 such Act (8 U.S.C. 1231(b)(3)) is amended by adding at 

6 the end the following: 

7 ‘‘(C) GENDER-BASED PERSECUTION.—For 

8 purposes of determinations under this para9 graph, an alien who establishes that the alien’s 

10 life or freedom would be threatened in a coun11 try on account of gender shall be considered to 

12 have established that the alien’s life or freedom 

13 would be threatened in that country on account 

14 of membership in a particular social group.’’. 

15 TITLE XIII—TEMPORARY 

16 PROTECTED STATUS 

17 SEC. 1301. ADJUSTMENT OF STATUS FOR CERTAIN RECIPI18 ENTS OF TEMPORARY PROTECTED STATUS. 

19 (a) IN GENERAL.—Section 245 (8 U.S.C. 1255) is 

20 amended by adding at the end the following: 

21 ‘‘(n)(1) If, in the opinion of the Secretary of the 

22 Homeland Security Department, a person granted tem23 porary protected status under section 244— 


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1 ‘‘(A) has been physically present in the United 

2 States in that status for a continuous period of at 

3 least 5 years; 

4 ‘‘(B) has at all times been a person of good 

5 moral character; 

6 ‘‘(C) has never been convicted of a criminal of7 fense in the United States; 

8 ‘‘(D) in the case of an alien who is 18 years of 

9 age or older, but who is not over the age of 65, has 

10 successfully completed a course on reading, writing, 

11 and speaking words in ordinary usage in the English 

12 language, unless unable to do so on account of phys13 ical or developmental disability or mental impair14 ment; 

15 ‘‘(E) in the case of an alien 18 years of age or 

16 older, has accepted the values and cultural life of the 

17 United States; and 

18 ‘‘(F) in the case of an alien 18 years of age or 

19 older, has performed at least 40 hours of community 

20 service; 

21 the Secretary may adjust the status of the alien to that 

22 of an alien lawfully admitted for permanent residence. 

23 ‘‘(2) An alien shall not be considered to have failed 

24 to maintain a continuous presence in the United States 


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1 for purposes of subsection (a)(1) by virtue of brief, casual, 

2 and innocent absences from the United States. 

3 ‘‘(3)(A) The alien shall establish that the alien is ad4 missible to the United States as immigrant, except as oth5 erwise provided in paragraph (2). 

6 ‘‘(B) The provisions of paragraphs (5), (6)(A), 

7 (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and 

8 (9)(C)(i)(I) of section 212(a) shall not apply in the deter9 mination of an alien’s admissibility under this section. 

10 ‘‘(4) When an alien is granted lawful permanent resi11 dent status under this subsection, the number of immi12 grant visas authorized to be issued under any provision 

13 of this Act shall not be reduced. The numerical limitations 

14 of sections 201 and 202 shall not apply to adjustment of 

15 status under this section. 

16 ‘‘(5) The Secretary of Homeland Security may termi17 nate removal proceedings without prejudice pending the 

18 outcome of an alien’s application for adjustment of status 

19 under this section on the basis of a prima facie showing 

20 of eligibility for relief under this section.’’. 

21 (b) LIMITATION ON CONSIDERATION IN THE SENATE

22 OF LEGISLATION ADJUSTING STATUS.—Section 244 (8 

23 U.S.C. 1254a) is amended by striking subsection (h) and 

24 redesignating subsection (i) as subsection (h). 


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1 SEC. 1302. FOREIGN STATE DESIGNATIONS. 

2 Section 244(b)(1)(C) (8 U.S.C. 1254a(b)(1)(C)) is 

3 amended to change the following phrase ‘‘the Attorney 

4 General finds that there exist extraordinary and tem5 porary conditions in the foreign state that prevent aliens 

6 who are nationals of the state from returning to the state 

7 in safety,’’ so that it reads as follows: ‘‘the Secretary of 

8 Homeland Security finds that extraordinary and tem9 porary conditions in the foreign state make returning 

10 aliens to the state undesirable for humanitarian reasons,’’. 

11 TITLE XIV—MISCELLANEOUS 

12 PROVISIONS 

13 SEC. 1401. NATURALIZATION PROVISIONS. 

14 (a) PHYSICAL PRESENCE REQUIREMENT.—Section 

15 316(a) (8 U.S.C. 1427) is amended by adding at the end 

16 the following: 

17 ‘‘(g) When warranted by extraordinary cir18 cumstances, the Secretary of Homeland Security may re19 duce, by not more than 90 days, the physical presence re20 quirement described in the preceding sentence.’’. 

21 (b) ABSENCES FROM THE UNITED STATES.—Section 

22 316(b) (8 U.S.C. 1427(b)) is amended— 

23 (1) in the first sentence, by striking ‘‘one year’’ 

24 and inserting ‘‘18 months’’; and 


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1 (2) in the second sentence, by striking ‘‘contin2 uous period of one year’’ and inserting ‘‘continuous 

3 period of 18 months’’. 

4 SEC. 1402. PREVENTING INAPPROPRIATE STATE AND 

5 LOCAL GOVERNMENT INVOLVEMENT IN THE 

6 ENFORCEMENT OF CIVIL IMMIGRATION PRO7 VISIONS UNDER THE IMMIGRATION AND NA8 TIONALITY ACT. 

9 (a) ELIMINATION OF BAN ON STATE AND LOCAL

10 GOVERNMENTS FROM PREVENTING COMMUNICATIONS

11 WITH THE DEPARTMENT OF HOMELAND SECURITY.— 

12 (1) IN GENERAL.—Section 642 of the Illegal 

13 Immigration Reform and Immigrant Responsibility 

14 Act of 1996 (8 U.S.C. 1373) is repealed. 

15 (2) VERIFICATION OF ELIGIBILITY FOR FED16 ERAL PUBLIC BENEFITS.—Section 432 of the Per17 sonal Responsibility and Work Opportunity Rec18 onciliation Act of 1996 (8 U.S.C. 1642) is repealed. 

19 (b) ELIMINATION OF AUTHORITY TO PERMIT STATE

20 PERSONNEL TO CARRY OUT IMMIGRATION OFFICER

21 FUNCTIONS.—Section 287(g) (8 U.S.C. 1357(g)) is re22 pealed. 


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1 SEC. 1403. NONIMMIGRANT CATEGORY FOR FASHION MOD2 ELS. 

3 (a) ELIMINATION OF H–1B CLASSIFICATION FOR

4 FASHION MODELS.—Section 101(a)(15)(H)(i)(b) of the 

5 Immigration and Nationality Act (8 U.S.C. 

6 1101(a)(15)(H)(i)(b)) is amended— 

7 (1) by striking ‘‘or as a fashion model’’; and 

8 (2) by striking ‘‘or, in the case of a fashion 

9 model, is of distinguished merit and ability’’. 

10 (b) NEW CLASSIFICATION.—Section 101(a)(15)(O) 

11 of the Immigration and Nationality Act (8 U.S.C. 

12 1101(a)(15)(O)) is amended— 

13 (1) in clause (iii), by striking ‘‘clause (i) or (ii)’’ 

14 and inserting ‘‘clause (i), (ii), or (iii)’’ and by redes15 ignating clause (iii) as clause (iv); and 

16 (2) by inserting after clause (ii) the following 

17 new clause: 

18 ‘‘(iii) is a fashion model who is of distin19 guished merit and ability and who is seeking to 

20 enter the United States temporarily to perform 

21 fashion modeling services that involve events or 

22 productions which have a distinguished reputa23 tion or that are performed for an organization 

24 or establishment that has a distinguished rep25 utation for, or a record of, utilizing prominent 

26 modeling talent; or’’. 


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1 (c) EFFECTIVE DATE AND IMPLEMENTATION.— 

2 (1) IN GENERAL.—The amendments made by 

3 this section shall take effect on the date of the en4 actment of this Act. 

5 (2) REGULATIONS, GUIDELINES, AND PRECE6 DENTS.—The regulations, guidelines, and precedents 

7 in effect on the date of the enactment of this Act for 

8 the adjudication of petitions for fashion models 

9 under section 101(a)(15)(H)(i)(b) of the Immigra10 tion and Nationality Act (8 U.S.C. 

11 1101(a)(15)(H)(i)(b)) shall be applied to petitions 

12 for fashion model under section 101(a)(15)(O)(iii) of 

13 the Immigration and Nationality Act (8 U.S.C. 

14 1101(a)(15)(O)(iii)), as added by this section, except 

15 that the duration of status approvals shall be based 

16 on regulations applicable to other occupations under 

17 section 101(a)(15)(O) of the Immigration and Na18 tionality Act (8 U.S.C. 1101(a)(15)(O)). 

19 (3) CONSTRUCTION.—Nothing in this section, 

20 or the amendments made by this section, shall be 

21 construed as preventing an alien who is a fashion 

22 model from obtaining nonimmigrant status under 

23 section 101(a)(15)(O)(i) of the Immigration and Na24 tionality Act (8 U.S.C. 1101(a)(15)(O)(i)) if such 

25 alien is otherwise qualified for such status. 


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1 (4) TREATMENT OF PENDING PETITIONS.—Pe2 titions filed on behalf of fashion models under sec3 tion 101(a)(15)(H)(i)(b) of the Immigration and 

4 Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) 

5 that are pending on the date of the enactment of 

6 this Act shall be treated as if they had been filed 

7 under section 101(a)(15)(O)(iii) of the Immigration 

8 and Nationality Act (8 U.S.C. 1101(a)(15)(O)(iii)), 

9 as added by this section. 

10 (5) VISA VALIDITY PERIOD.—The validity pe11 riod for visas issued to beneficiaries of petitions filed 

12 under section 101(a)(15)(O)(iii) of the Immigration 

13 and Nationality Act (8 U.S.C. 1101(a)(15)(O)(iii)) 

14 shall be for the full period of approval notwith15 standing the reciprocity validity periods that would 

16 otherwise be applicable. 

Æ 


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