American Right to Family Act
Bill: H.R.1435 | Sponsor: Rep. Rush, Bobby L. (D-IL)
Policy area: Immigration

Summary:
American Right to Family Act
This bill requires the cancellation of removal and adjustment of status for an alien parent or spouse who meets certain requirements.
To be eligible for cancellation of removal and adjustment of status under this bill, an alien must (1) meet certain residency-related requirements, such as having been physically present in the United States for at least 10 years or having received a deferral of removal under the Deferred Action for Childhood Arrivals policy; (2) be a parent of either a U.S. national or an individual who first entered the United States under 16 years of age and has been continuously present in the United States since entry; and (3) not be barred from receiving certain immigration benefits on specified grounds, including certain grounds related to criminal conduct or national security.
The Department of Homeland Security may waive certain crime-related grounds of inadmissibility for reasons related to the public interest, subject to various limitations.
An alien whose removal is canceled under this bill shall be adjusted to temporary resident status for a three-year period, which may be renewed. Furthermore, a cancellation for removal or adjustment of status under this bill shall not count toward certain annual numerical limitations on such actions.
The bill also establishes a nonimmigrant W visa available to (1) an alien parent eligible for cancellation for removal and adjustment of status under this bill, and (2) an alien spouse of a U.S. national who meets the residency-related requirements described above and not barred. W visas shall have no annual numerical limitations.

To amend the Immigration and Nationality Act to provide Temporary 
 Resident Status for certain parents and spouses of citizens or lawful 
        residents of the United States, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``American Right to Family Act''.

SEC. 2. TEMPORARY RESIDENT STATUS FOR CERTAIN LONG-TERM RESIDENT 
              PARENTS.

    Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15)) is amended by adding at the end the following:
                    ``(W) Temporary resident status for certain long-
                term resident parents.--
                            ``(i) In general.--Subject to section 
                        214(s), an alien who files a petition for 
                        status under this subparagraph, if the 
                        Secretary of Homeland Security determines 
                        that--
                                    ``(I) the alien--
                                            ``(aa) has been physically 
                                        present in the United States 
                                        for a continuous period of not 
                                        less than 10 years immediately 
                                        preceding the date of the 
                                        alien's application;
                                            ``(bb) has been granted 
                                        deferred action pursuant to the 
                                        Deferred Action for Childhood 
                                        Arrivals Memorandum announced 
                                        by the Secretary of Homeland 
                                        Security on June 15, 2012, or 
                                        would have otherwise qualified 
                                        for the Deferred Action for 
                                        Childhood Arrivals announced by 
                                        the Secretary of Homeland 
                                        Security pursuant to the 
                                        November 14, 2014, Memorandum; 
                                        and
                                            ``(cc) is a covered person;
                                    ``(II) the alien--
                                            ``(aa) was issued an order 
                                        of removal from the United 
                                        States under sections 235 or 
                                        240 of the Immigration and 
                                        Nationality Act, and--

                                                    ``(AA) remained in 
                                                the United States;

                                                    ``(BB) was removed, 
                                                deported, or permitted 
                                                to depart voluntarily 
                                                from the United States;

                                                    ``(CC) resides 
                                                outside of the United 
                                                States; or

                                                    ``(DD) unlawfully 
                                                reentered the United 
                                                States after being 
                                                issued an order of 
                                                removal under section 
                                                235 or 240 of the 
                                                Immigration and 
                                                Nationality Act;

                                            ``(bb) was physically 
                                        present in the United States 
                                        for a continuous presence of 
                                        not less than 10 years 
                                        immediately preceding the date 
                                        of the alien's order of 
                                        removal; and
                                            ``(cc) is a covered person.
                            ``(ii) Definition.--For purposes of this 
                        subparagraph, a covered person is an alien who 
                        is--
                                    ``(I) the parent of a child who--
                                            ``(aa) is a citizen or 
                                        national of the United States; 
                                        or
                                            ``(bb) initially entered 
                                        the United States before the 
                                        age of 16 and has been 
                                        continuously and physically 
                                        present in the United States 
                                        since their last entry; or
                                    ``(II) the spouse of a person who--
                                            ``(aa) is a citizen or 
                                        lawful permanent resident of 
                                        the United States; or
                                            ``(bb) initially entered 
                                        the United States before the 
                                        age of 16 and has been 
                                        continuously and physically 
                                        present in the United States 
                                        since their last entry.''.

SEC. 3. REQUIREMENTS FOR TEMPORARY RESIDENT STATUS FOR CERTAIN LONG-
              TERM RESIDENT PARENTS.

    Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) 
is amended by adding the following subsection:
    ``(s) Requirements Applicable to Section 101(a)(15)(W) Visas or 
Nonimmigrant Status.--
            ``(1) In general.--In the case of a nonimmigrant described 
        in section 101(a)(15)(W), the alien--
                    ``(A) is not inadmissible under section 212(a)(1), 
                (a)(6)(E), (a)(8), or (a)(10) of the Immigration and 
                Nationality Act;
                    ``(B) is not inadmissible under section 212(a)(2), 
                unless eligible for a waiver pursuant to subsection (6) 
                of this section; and
                    ``(C) has not ordered, incited assisted or 
                otherwise participated in the persecution of any person 
                on account of race, religion, nationality, membership 
                in a particular social group, or political opinion.
            ``(2) Credible evidence considered.--In acting on any 
        petition filed under this subsection, the consular officer, 
        Secretary of Homeland Security, or the Attorney General, as 
        appropriate, shall consider any credible evidence relevant to 
        the petition.
            ``(3) Work authorization.--In the case of a nonimmigrant 
        described in section 101(a)(15)(W), the Secretary of Homeland 
        Security shall authorize the alien to engage in employment in 
        the United States during the period of authorized admission and 
        shall provide the alien with an `employment authorized' 
        endorsement or other appropriate document signifying 
        authorization of employment. Work authorization provided under 
        this paragraph shall be effective throughout the period the 
        alien is in temporary resident status.
            ``(4) No numerical limitations.--The number of aliens who 
        may be issued visas or otherwise provided status as 
        nonimmigrants under section 101(a)(15)(W) shall have no 
        numerical limitations.
            ``(5) Duration of status.--The authorized period of status 
        of an alien as a nonimmigrant under section 101(a)(15)(W) shall 
        be valid for a period of 3 years, but the Secretary of Homeland 
        Security shall extend or renew such period, with no limit on 
        the number of such renewals, if--
                    ``(A) the alien files a nonfrivolous application 
                for renewal before the date of expiration of authorized 
                stay determined by the Secretary; and
                    ``(B) the Secretary determines that the alien 
                continues to meet the conditions as defined by section 
                101(a)(15)(W) and subject to the requirements provided 
                under this subsection.
        Further, in the case of an alien who files a nonfrivolous 
        application for renewal before the date of expiration of the 
        period of authorized stay by the Secretary, the alien's period 
        of temporary resident status and work authorization shall be 
        deemed automatically extended during the pendency of the 
        application.
            ``(6) Waivers for certain misdemeanors.--Include the same 
        or similar language in section 240A(f)(3)(C), and explain that 
        certain crimes related to section 212(a)(2) are also to be 
        expressly excluded (and the applicant remains eligible for 
        relief under this section) if described in section 
        240A(f)(D)(i)(ii)(I) (i.e. except simple possession of 
        cannabis/paraphernalia, etc.) and include the language in 
        treatment of certain crimes.
            ``(7) Nonexclusive relief.--Nothing in this subsection 
        limits the ability of aliens who qualify for status under 
        section 101(a)(15)(W) to seek any other immigration benefit or 
        status for which the alien may be eligible.''.

SEC. 4. CANCELLATION OF REMOVAL AND TEMPORARY RESIDENT STATUS FOR 
              CERTAIN LONG-TERM RESIDENT PARENTS.

    Section 240A of the Immigration and Nationality Act (8 U.S.C. 
1229b) is amended by adding at the end the following:
    ``(f) Cancellation of Removal and Temporary Resident Status for 
Certain Long-Term Resident Parents.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, the Secretary of Homeland Security or the Attorney General 
        shall cancel the removal of, and adjust to the status of an 
        alien having lawful temporary residence, an alien who is 
        inadmissible or deportable from the United States if--
                    ``(A) the alien--
                            ``(i) has been physically present in the 
                        United States for a continuous period of not 
                        less than 10 years immediately preceding the 
                        date of the alien's application;
                            ``(ii) subject to paragraph (7), was 
                        removed, deported, or permitted to depart 
                        voluntarily from the United States after having 
                        been physically present in the United States 
                        for a continuous period of not less than 10 
                        years;
                            ``(iii) has been granted deferred action 
                        pursuant to the Deferred Action for Childhood 
                        Arrivals Memorandum announced by the Secretary 
                        of Homeland Security on June 15, 2012, or would 
                        have otherwise qualified for the Deferred 
                        Action for Childhood Arrivals announced by the 
                        Secretary of Homeland Security pursuant to the 
                        November 14, 2014, Memorandum; or
                            ``(iv) would have been eligible for a grant 
                        of deferred action pursuant to such policy, if 
                        the memorandum announcing the policy were fully 
                        in effect since the date issued;
                    ``(B) the alien is the parent of a son or daughter 
                who--
                            ``(i) is a citizen or national of the 
                        United States; or
                            ``(ii) initially entered the United States 
                        while under 16 years of age and has been 
                        continuously physically present in the United 
                        States since such entry; and
                    ``(C) the alien--
                            ``(i) is not inadmissible under paragraph 
                        (1), (6)(E), (6)(G), (8), or (10) of section 
                        212(a);
                            ``(ii) has not ordered, incited, assisted, 
                        or otherwise participated in the persecution of 
                        any person on account of race, religion, 
                        nationality, membership in a particular social 
                        group, or political opinion; and
                            ``(iii) is not barred from adjustment of 
                        status under this subsection based on the 
                        criminal and national security grounds 
                        described under paragraph (3), subject to the 
                        provisions of such paragraph.
            ``(2) Determination of continuous presence.--
                    ``(A) Effect of notice to appear.--Any period of 
                continuous physical presence in the United States of an 
                alien who applies for temporary resident status under 
                this subsection shall not terminate when the alien is 
                served a notice to appear under section 239(a).
                    ``(B) Treatment of certain breaks in presence or 
                residence.--
                            ``(i) In general.--Except as provided in 
                        clauses (ii) and (iii), an alien shall be 
                        considered to have failed to maintain 
                        continuous physical presence in the United 
                        States under this subsection if the alien has 
                        departed from the United States for any period 
                        exceeding 90 days or for any periods, in the 
                        aggregate, exceeding 180 days.
                            ``(ii) Extensions for extenuating 
                        circumstances.--The Secretary may extend the 
                        time period described in clause (i) for an 
                        alien who demonstrates that the failure to 
                        timely return to the United States was due to 
                        extenuating circumstances beyond the alien's 
                        control, including the serious illness of the 
                        alien, or death or serious illness of a parent, 
                        grandparent, sibling, or child of the alien.
                            ``(iii) Travel authorized by the 
                        secretary.--Any period of travel outside of the 
                        United States by an alien that was authorized 
                        by the Secretary of Homeland Secretary may not 
                        be counted toward any period of departure from 
                        the United States under clause (i).
            ``(3) Criminal and national security bars.--
                    ``(A) Grounds of ineligibility.--Except as provided 
                in subparagraphs (B) and (C), an alien is ineligible 
                for cancellation of removal and adjustment of status 
                under this subsection if any of the following apply:
                            ``(i) The alien is inadmissible under 
                        paragraph (2) or (3) of section 212(a) of the 
                        Immigration and Nationality Act.
                            ``(ii) Excluding any offense under State 
                        law for which an essential element is the 
                        alien's immigration status, and any minor 
                        traffic offense, the alien has been convicted 
                        of--
                                    ``(I) any felony offense;
                                    ``(II) three or more misdemeanor 
                                offenses (excluding simple possession 
                                of cannabis or cannabis-related 
                                paraphernalia, any offense involving 
                                cannabis or cannabis-related 
                                paraphernalia which is no longer 
                                prosecutable in the State in which the 
                                conviction was entered, and any offense 
                                involving civil disobedience without 
                                violence) not occurring on the same 
                                date, and not arising out of the same 
                                act, omission, or scheme of misconduct; 
                                or
                                    ``(III) a misdemeanor offense of 
                                domestic violence, unless the alien 
                                demonstrates that such crime is related 
                                to the alien having been--
                                            ``(aa) a victim of domestic 
                                        violence, sexual assault, 
                                        stalking, child abuse or 
                                        neglect, abuse or neglect in 
                                        later life, or human 
                                        trafficking;
                                            ``(bb) battered or 
                                        subjected to extreme cruelty; 
                                        or
                                            ``(cc) a victim of criminal 
                                        activity described in section 
                                        101(a)(15)(U)(iii).
                    ``(B) Treatment of certain offenses.--
                            ``(i) In general.--Notwithstanding section 
                        101(h), a crime described in clause (ii) shall 
                        only be considered for purposes of this 
                        subsection if--
                                    ``(I) such crime involves personal 
                                injury or death to another; or
                                    ``(II) the alien has been convicted 
                                of such a crime more than once during 
                                the 10 years immediately preceding the 
                                date of the alien's application.
                            ``(ii) Crime described.--A crime described 
                        in this clause is--
                                    ``(I) a crime of reckless driving 
                                or of driving while intoxicated or 
                                under the influence of alcohol or of 
                                controlled substances; or
                                    ``(II) a crime involving controlled 
                                substances.
                    ``(C) Waivers for certain misdemeanors.--For 
                humanitarian purposes, family unity, or if otherwise in 
                the public interest, the Secretary may--
                            ``(i) waive the grounds of inadmissibility 
                        under subparagraphs (A), (C), and (D) of 
                        section 212(a)(2), unless the conviction 
                        forming the basis for inadmissibility would 
                        otherwise render the alien ineligible under 
                        subparagraph (A)(ii) (subject to clause (ii)); 
                        and
                            ``(ii) for purposes of subclauses (II) and 
                        (III) of subparagraph (A)(ii), waive 
                        consideration of--
                                    ``(I) one misdemeanor offense if 
                                the alien has not been convicted of any 
                                offense in the 5-year period preceding 
                                the date on which the alien applies for 
                                adjustment of status under this 
                                subsection; or
                                    ``(II) up to two misdemeanor 
                                offenses if the alien has not been 
                                convicted of any offense in the 10-year 
                                period preceding the date on which the 
                                alien applies for adjustment of status 
                                under this subsection.
                    ``(D) Authority to conduct secondary review.--
                            ``(i) In general.--Notwithstanding an 
                        alien's eligibility for adjustment of status 
                        under this subsection, and subject to the 
                        procedures described in this subparagraph, the 
                        Secretary of Homeland Security or the Attorney 
                        General may, as a matter of non-delegable 
                        discretion, provisionally deny an application 
                        for adjustment of status if the Secretary or 
                        the Attorney General, based on clear and 
                        convincing evidence, which shall include 
                        credible law enforcement information, 
                        determines that the alien is described in 
                        clause (ii) or (iv).
                            ``(ii) Public safety.--An alien is 
                        described in this clause if--
                                    ``(I) excluding simple possession 
                                of cannabis or cannabis-related 
                                paraphernalia, any offense involving 
                                cannabis or cannabis-related 
                                paraphernalia which is no longer 
                                prosecutable in the State in which the 
                                conviction was entered, any offense 
                                under State law for which an essential 
                                element is the alien's immigration 
                                status, any offense involving civil 
                                disobedience without violence, and any 
                                minor traffic offense, the alien--
                                            ``(aa) has been convicted 
                                        of a misdemeanor offense 
                                        punishable by a term of 
                                        imprisonment of more than 30 
                                        days; or
                                            ``(bb) has been adjudicated 
                                        delinquent in a State or local 
                                        juvenile court proceeding that 
                                        resulted in a disposition 
                                        ordering placement in a secure 
                                        facility; and
                                    ``(II) the alien poses a 
                                significant and continuing threat to 
                                public safety related to such 
                                conviction or adjudication.
                            ``(iii) Public safety determination.--For 
                        purposes of clause (ii)(II), the Secretary 
                        shall consider the recency of the conviction or 
                        adjudication; the length of any imposed 
                        sentence or placement; the nature and 
                        seriousness of the conviction or adjudication, 
                        including whether the elements of the offense 
                        include the unlawful possession or use of a 
                        deadly weapon to commit an offense or other 
                        conduct intended to cause serious bodily 
                        injury; and any mitigating factors pertaining 
                        to the alien's role in the commission of the 
                        offense.
                            ``(iv) Gang participation.--An alien is 
                        described in this clause if the alien has, 
                        within the 5 years immediately preceding the 
                        date of the application, knowingly, willfully, 
                        and voluntarily participated in offenses 
                        committed by a criminal street gang (as 
                        described in subsections (a) and (c) of section 
                        521 of title 18, United States Code) with the 
                        intent to promote or further the commission of 
                        such offenses.
                            ``(v) Evidentiary limitation.--For purposes 
                        of clause (iv), allegations of gang membership 
                        obtained from a State or Federal in-house or 
                        local database, or a network of databases used 
                        for the purpose of recording and sharing 
                        activities of alleged gang members across law 
                        enforcement agencies, shall not establish the 
                        participation described in such clause.
                            ``(vi) Notice.--
                                    ``(I) In general.--Prior to 
                                rendering a discretionary decision 
                                under this subparagraph, the Secretary 
                                of Homeland Security or the Attorney 
                                General shall provide written notice of 
                                the intent to provisionally deny the 
                                application to the alien (or the 
                                alien's counsel of record, if any) by 
                                certified mail and, if an electronic 
                                mail address is provided, by electronic 
                                mail (or other form of electronic 
                                communication). Such notice shall--
                                            ``(aa) articulate with 
                                        specificity all grounds for the 
                                        preliminary determination, 
                                        including the evidence relied 
                                        upon to support the 
                                        determination; and
                                            ``(bb) provide the alien 
                                        with not less than 90 days to 
                                        respond.
                                    ``(II) Second notice.--Not more 
                                than 30 days after the issuance of the 
                                notice under subclause (I), the 
                                Secretary of Homeland Security or the 
                                Attorney General shall provide a second 
                                written notice that meets the 
                                requirements of such clause.
                                    ``(III) Notice not received.--
                                Notwithstanding any other provision of 
                                law, if an applicant provides good 
                                cause for not contesting a provisional 
                                denial under this paragraph, including 
                                a failure to receive notice as required 
                                under this subparagraph, the Secretary 
                                of Homeland Security or the Attorney 
                                General shall, upon a motion filed by 
                                the alien, reopen an application for 
                                adjustment of status under this 
                                subsection and allow the applicant an 
                                opportunity to respond, consistent with 
                                subclause (I)(bb).
                    ``(E) Definitions.--For purposes of this 
                paragraph--
                            ``(i) the term `felony offense' means an 
                        offense under Federal or State law that is 
                        punishable by a maximum term of imprisonment of 
                        more than 1 year;
                            ``(ii) the term `misdemeanor offense' means 
                        an offense under Federal or State law that is 
                        punishable by a term of imprisonment of more 
                        than 5 days but not more than 1 year;
                            ``(iii) the term `crime of domestic 
                        violence' means any offense that has as an 
                        element the use, attempted use, or threatened 
                        use of physical force against a person 
                        committed by a current or former spouse of the 
                        person, by an individual with whom the person 
                        shares a child in common, by an individual who 
                        is cohabiting with or has cohabited with the 
                        person as a spouse, by an individual similarly 
                        situated to a spouse of the person under the 
                        domestic or family violence laws of the 
                        jurisdiction where the offense occurs, or by 
                        any other individual against a person who is 
                        protected from that individual's acts under the 
                        domestic or family violence laws of the United 
                        States or any State, Indian tribal government, 
                        or unit of local government; and
                            ``(iv) the terms `convicted', `conviction', 
                        `adjudicated', and `adjudication' do not 
                        include a judgment that has been expunged or 
                        set aside, that resulted in a rehabilitative 
                        disposition, or the equivalent.
            ``(4) Work authorization.--In the case of an alien who has 
        temporary resident status under this subsection, the Secretary 
        of Homeland Security shall authorize the alien to engage in 
        employment in the United States and provide the alien with an 
        `employment authorized' endorsement or other appropriate work 
        permit. Work authorization provided under this paragraph shall 
        be effective throughout the period the alien is in temporary 
        resident status under this subsection.
            ``(5) Terms of status.--
                    ``(A) In general.--Temporary resident status under 
                this subsection shall be valid for a period of 3 years, 
                unless such period is extended or renewed.
                    ``(B) Renewal.--In the case of an alien who has 
                temporary resident status under this subsection, the 
                Secretary of Homeland Security shall renew the status 
                in 3-year increments, with no limit on the number of 
                such renewals, if--
                            ``(i) the alien files a nonfrivolous 
                        application for renewal before the date of 
                        expiration of the period of stay authorized by 
                        the Secretary; and
                            ``(ii) the Secretary determines that the 
                        alien continues to meet the conditions for 
                        adjustment of status under this subsection.
                    ``(C) Automatic extension during pendency of 
                application.--In the case of an alien who files a 
                nonfrivolous application for renewal before the date of 
                expiration of the period of stay authorized by the 
                Secretary, the alien's period of temporary resident 
                status and work authorization shall be deemed extended 
                during the pendency of the application.
            ``(6) Documents establishing continuous physical 
        presence.--To establish that an alien has been continuously 
        physically present in the United States, as required under 
        paragraph (1), the alien may submit the following forms of 
        evidence:
                    ``(A) Passport entries, including admission stamps 
                on the alien's passport.
                    ``(B) Any document from the Department of Justice 
                or the Department of Homeland Security noting the 
                alien's date of entry into the United States.
                    ``(C) Records from any educational institution the 
                alien has attended in the United States.
                    ``(D) Employment records of the alien that include 
                the employer's name and contact information, or other 
                records demonstrating earned income.
                    ``(E) Records of service from the Uniformed 
                Services.
                    ``(F) Official records from a religious entity 
                confirming the alien's participation in a religious 
                ceremony.
                    ``(G) A birth certificate for a child who was born 
                in the United States.
                    ``(H) Hospital or medical records showing medical 
                treatment or hospitalization, the name of the medical 
                facility or physician, and the date of the treatment or 
                hospitalization.
                    ``(I) Automobile license receipts or registration.
                    ``(J) Deeds, mortgages, or rental agreement 
                contracts.
                    ``(K) Rent receipts or utility bills bearing the 
                alien's name or the name of an immediate family member 
                of the alien, and the alien's address.
                    ``(L) Tax receipts.
                    ``(M) Insurance policies.
                    ``(N) Remittance records, including copies of money 
                order receipts sent in or out of the country.
                    ``(O) Travel records.
                    ``(P) Dated bank transactions.
                    ``(Q) Two or more sworn affidavits from individuals 
                who are not related to the alien who have direct 
                knowledge of the alien's continuous physical presence 
                in the United States, that contain--
                            ``(i) the name, address, and telephone 
                        number of the affiant; and
                            ``(ii) the nature and duration of the 
                        relationship between the affiant and the alien.
                    ``(R) Any other evidence determined to be credible 
                by the Secretary of Homeland Security or the Attorney 
                General.
            ``(7) Eligibility of removed, deported, or voluntarily 
        departed aliens.--An alien who was removed, deported, or 
        permitted to depart voluntarily from the United States may 
        apply for relief under this subsection from abroad if the 
        reason for their removal, deportation, or voluntary departure 
        was that the alien--
                    ``(A) was present in the United States after the 
                expiration of the period of stay authorized by the 
                Secretary of Homeland Security or was present in the 
                United States without being admitted or paroled; or
                    ``(B) committed an offense, if that offense does 
                not render the alien ineligible for relief under this 
                subsection pursuant to the provisions of paragraph (3).
            ``(8) Construction.--
                    ``(A) In general.--A denial of cancellation of 
                removal under any other provision of this section shall 
                not prejudice a decision under this subsection. An 
                alien's eligibility for temporary resident status under 
                this subsection shall not preclude the alien from 
                seeking any status under any other provision of law for 
                which the alien may otherwise be eligible.
                    ``(B) Determination of continuous presence and 
                residence.--Subsection (d) shall not apply to 
                cancellation of removal or adjustment of status under 
                this subsection.
                    ``(C) Annual limitation.--Subsection (e) shall not 
                apply to cancellation of removal or adjustment of 
                status under this subsection.''.
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