II Calendar No. 338 115th CONGRESS 2d Session S. 2464 IN THE SENATE OF THE UNITED STATES February 27, 2018 Mr. Flake (for himself and Ms. Heitkamp ) introduced the following bill; which was read the first time February 28, 2018 Read the second time and placed on the calendar A BILL To improve border security and to provide conditional provision residence to certain long-term residents who entered the United States as children.

1. Short title; table of contents (a) Short title This Act may be cited as the Three-Year Border and DACA Extension Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Border Security Sec. 101. Authorization of appropriations. Sec. 102. Operations and support. TITLE II—DACA Extension Sec. 201. Provisional protected presence for young individuals. I Border Security 101. Authorization of appropriations There is authorized to be appropriated a total of $7,639,000,000 to the Department of Homeland Security for fiscal years 2018 through 2020 for the purpose of improving border security. 102. Operations and support (a) Purpose It is the purpose of this section to establish a Border Security Enforcement Fund (referred to in this section as the Fund ), to be administered through the Department of Homeland Security and, in fiscal year 2018 only, through the Department of State, to provide for costs necessary to implement this Act and other Acts related to border security for activities, including— (1) constructing, installing, deploying, operating, and maintaining tactical infrastructure and technology in the vicinity of the United States border— (A) to achieve situational awareness and operational control of the border; and (B) to deter, impede, and detect illegal activity in high traffic areas; and (C) to implement other border security provisions under this section; (2) implementing port of entry provisions under this section; (3) purchasing new aircraft, vessels, spare parts, and equipment to operate and maintain such craft; and (4) hiring and recruitment. (b) Funding There are appropriated, to the Fund, out of any monies in the Treasury not otherwise appropriated, a total of $7,639,000,000, as follows: (1) For fiscal year 2018, $2,947,000,000, to remain available through fiscal year 2022. (2) For fiscal year 2019, $2,225,000,000, to remain available through fiscal year 2023. (3) For fiscal year 2020, $2,467,000,000, to remain available through fiscal year 2024. (c) Physical barriers (1) In general In each of the following fiscal years, the Secretary of Homeland Security shall transfer, from the Fund to the U.S. Customs and Border Protection—Procurement, Construction and Improvements account, for the purpose of constructing, replacing, or planning physical barriers along the United States land border, a total of $5,013,000,000, as follows: (A) For fiscal year 2018, $1,571,000,000. (B) For fiscal year 2019, $1,600,000,000. (C) For fiscal year 2020, $1,842,000,000. (2) Availability of funds Notwithstanding section 1552(a) of title 31, United States Code, any amounts obligated for the purposes described in paragraph (1) shall remain available for disbursement until expended. (d) Transfer authority Other than the amounts transferred by the Secretary of Homeland Security and the Secretary of State pursuant to subsections (b) and (c), the Committee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives may provide for the transfer of amounts in the Fund for each fiscal year to eligible activities under this section, including— (1) for the purpose of constructing, replacing, or planning for physical barriers along the United States land border; or (2) for any of the activities described in subsection (a). (e) Use of fund If the Committee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives do not provide for the transfer of funds in a full-year appropriation in any fiscal year in accordance with subsection (d), the Secretary of Homeland Security shall transfer amounts in the Fund to accounts within the Department of Homeland Security for eligible activities under this section, including not less than the amounts specified in subsection (c) for the purpose of constructing, replacing, or planning for physical barriers along the United States land border. (f) Budget request A request for the transfer of amounts in the Fund under this section— (1) shall be included in each budget for a fiscal year submitted by the President under section 1105 of title 31, United States Code; and (2) shall detail planned obligations by program, project, and activity in the receiving account at the same level of detail provided for in the request for other appropriations in that account. (g) Reporting requirement At the beginning of fiscal year 2019, and annually thereafter until the funding made available under this title has been expended, the Secretary of Homeland Security shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate , the Committee on the Judiciary of the Senate , the Committee on Homeland Security of the House of Representatives , and the Committee on the Judiciary of the House of Representatives that describes— (1) the status of border security in the United States; and (2) the amount planned to be expended on border security during the upcoming fiscal year, broken down by project and activity. II DACA Extension 201. Provisional protected presence for young individuals (a) In general Chapter 4 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1221 et seq.) is amended by adding at the end the following: 244A. Provisional protected presence (a) Definitions In this section: (1) DACA recipient - The term DACA recipient means an alien who is in deferred action status on the date of the enactment of this section pursuant to the Deferred Action for Childhood Arrivals ( DACA ) Program announced on June 15, 2012. (2) Felony The term felony means a Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien's immigration status) punishable by imprisonment for a term exceeding 1 year. (3) Misdemeanor The term misdemeanor means a Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien's immigration status, a significant misdemeanor, and a minor traffic offense) for which— (A) the maximum term of imprisonment is greater than five days and not greater than 1 year; and (B) the individual was sentenced to time in custody of 90 days or less. (4) Secretary The term Secretary means the Secretary of Homeland Security. (5) Significant misdemeanor The term significant misdemeanor means a Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien's immigration status) for which the maximum term of imprisonment is greater than 5 days and not greater than 1 year that— (A) regardless of the sentence imposed, is a crime of domestic violence (as defined in section 237(a)(2)(E)(i)) or an offense of sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence if the State law requires, as an element of the offense, the operation of a motor vehicle and a finding of impairment or a blood alcohol content of .08 or higher; or (B) resulted in a sentence of time in custody of more than 90 days, excluding an offense for which the sentence was suspended. (6) Threat to national security An alien is a threat to national security if the alien is— (A) inadmissible under section 212(a)(3); or (B) deportable under section 237(a)(4). (7) Threat to public safety An alien is a threat to public safety if the alien— (A) has been convicted of an offense for which an element was participation in a criminal street gang (as defined in section 521(a) of title 18, United States Code); or (B) has engaged in a continuing criminal enterprise (as defined in section 408(c) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ( 21 U.S.C. 848(c) )). (b) Authorization The Secretary— (1) shall grant provisional protected presence to an alien who— (A) files an application demonstrating that he or she meets the eligibility criteria under subsection (c); and (B) pays the appropriate application fee; (2) may not remove such alien from the United States during the period in which such provisional protected presence is in effect unless such status is rescinded pursuant to subsection (g); and (3) shall provide such alien with employment authorization. (c) Eligibility criteria An alien is eligible for provisional protected presence and employment authorization under this section if the alien— (1) was born after June 15, 1981; (2) entered the United States before reaching 16 years of age; (3) continuously resided in the United States between June 15, 2007, and the date on which the alien files an application under this section; (4) was physically present in the United States on June 15, 2012, and on the date on which the alien files an application under this section; (5) was unlawfully present in the United States on June 15, 2012; (6) on the date on which the alien files an application for provisional protected presence— (A) is enrolled in school or in an education program assisting students in obtaining a regular high school diploma or its recognized equivalent under State law, or in passing a general educational development exam or other State-authorized exam; (B) has graduated or obtained a certificate of completion from high school; (C) has obtained a general educational development certificate; or (D) is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; (7) has not been convicted of— (A) a felony; (B) a significant misdemeanor; or (C) 3 or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct; and (8) does not otherwise pose a threat to national security or a threat to public safety. (d) Duration of provisional protected presence and employment authorization Provisional protected presence and employment authorization provided under this section shall be effective until the date that is 3 years after the date of the enactment of the Three-Year Border and DACA Extension Act . (e) Status during period of provisional protected presence (1) In general An alien granted provisional protected presence is not considered to be unlawfully present in the United States during the period beginning on the date such status is granted and ending on the date described in subsection (d). (2) Status outside period The granting of provisional protected presence under this section does not excuse previous or subsequent periods of unlawful presence. (f) Application (1) Age requirement (A) In general An alien who has never been in removal proceedings, or whose proceedings have been terminated before making a request for provisional protected presence, shall be at least 15 years old on the date on which the alien submits an application under this section. (B) Exception The age requirement set forth in subparagraph (A) shall not apply to an alien who, on the date on which the alien applies for provisional protected presence, is in removal proceedings, has a final removal order, or has a voluntary departure order. (2) Application fee (A) In general The Secretary may require aliens applying for provisional protected presence and employment authorization under this section to pay a reasonable fee that is commensurate with the cost of processing the application. (B) Exemption An applicant may be exempted from paying the fee required under subparagraph (A) if the alien— (i) (I) is younger than 18 years of age; (II) received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level; and (III) is in foster care or otherwise lacking any parental or other familial support; (ii) is younger than 18 years of age and is homeless; (iii) (I) cannot care for himself or herself because of a serious, chronic disability; and (II) received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level; or (iv) (I) as of the date on which the alien files an application under this section, has accumulated $10,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses incurred by the alien or an immediate family member of the alien; and (II) received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level. (3) Removal stayed while application pending The Secretary may not remove an alien from the United States who appears prima facie eligible for provisional protected presence while the alien's application for provisional protected presence is pending. (4) Aliens not in immigration detention An alien who is not in immigration detention, but who is in removal proceedings, is the subject of a final removal order, or is the subject of a voluntary departure order, may apply for provisional protected presence under this section if the alien appears prima facie eligible for provisional protected presence. (5) Aliens in immigration detention The Secretary shall provide any alien in immigration detention, including any alien who is in removal proceedings, is the subject of a final removal order, or is the subject of a voluntary departure order, who appears prima facie eligible for provisional protected presence, upon request, with a reasonable opportunity to apply for provisional protected presence under this section. (6) Confidentiality (A) In general The Secretary shall protect information provided in applications for provisional protected presence under this section and in requests for consideration of DACA from disclosure to U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection for the purpose of immigration enforcement proceedings. (B) Referrals prohibited The Secretary may not refer individuals whose cases have been deferred pursuant to DACA or who have been granted provisional protected presence under this section to U.S. Immigration and Customs Enforcement. (C) Limited exception The information submitted in applications for provisional protected presence under this section and in requests for consideration of DACA may be shared with national security and law enforcement agencies— (i) for assistance in the consideration of the application for provisional protected presence; (ii) to identify or prevent fraudulent claims; (iii) for national security purposes; and (iv) for the investigation or prosecution of any felony not related to immigration status. (7) Acceptance of applications Not later than 60 days after the date of the enactment of the Three-Year Border and DACA Extension Act , the Secretary shall begin accepting applications for provisional protected presence and employment authorization. (g) Rescission of provisional protected presence The Secretary may not rescind an alien's provisional protected presence or employment authorization granted under this section unless the Secretary determines that the alien— (1) has been convicted of— (A) a felony; (B) a significant misdemeanor; or (C) 3 or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct; (2) poses a threat to national security or a threat to public safety; (3) has traveled outside of the United States without authorization from the Secretary; or (4) has ceased to continuously reside in the United States. (h) Treatment of brief, casual, and innocent departures and certain other absences For purposes of subsections (c)(3) and (g)(4), an alien shall not be considered to have failed to continuously reside in the United States due to— (1) brief, casual, and innocent absences from the United States during the period beginning on June 15, 2007, and ending on August 14, 2012; or (2) travel outside of the United States on or after August 15, 2012, if such travel was authorized by the Secretary. (i) Treatment of expunged convictions For purposes of subsections (c)(7) and (g)(1), an expunged conviction shall not automatically be treated as a disqualifying felony, significant misdemeanor, or misdemeanor, but shall be evaluated on a case-by-case basis according to the nature and severity of the offense to determine whether, under the particular circumstances, the alien should be eligible for provisional protected presence under this section. (j) Effect of deferred action under deferred action for childhood arrivals program (1) Provisional protected presence A DACA recipient is deemed to have provisional protected presence under this section through the expiration date of the alien's deferred action status, as specified by the Secretary in conjunction with the approval of the alien's DACA application. (2) Employment authorization If a DACA recipient has been granted employment authorization by the Secretary in addition to deferred action, the employment authorization shall continue through the expiration date of the alien's deferred action status, as specified by the Secretary in conjunction with the approval of the alien’s DACA application. (3) Effect of application If a DACA recipient files an application for provisional protected presence under this section not later than the expiration date of the alien's deferred action status, as specified by the Secretary in conjunction with the approval of the alien's DACA application, the alien’s provisional protected presence, and any employment authorization, shall remain in effect pending the adjudication of such application. . (b) Clerical amendment The table of contents for the Immigration and Nationality Act ( 8 U.S.C. 1101 note) is amended by inserting after the item relating to section 244 the following: Sec. 244A. Provisional protected presence. .

February 28, 2018 Read the second time and placed on the calendar