S 3639 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

2d SessionCommentsClose CommentsPermalink

S. 3639CommentsClose CommentsPermalink

To amend the Immigration and Nationality Act to provide secure borders and to give long-term resident youth the ability to contribute to the safety and economic growth of the United States and for other purposes.CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

November 27, 2012CommentsClose CommentsPermalink

Mrs. HUTCHISON (for herself, Mr. KYL, and Mr. MCCAIN) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To amend the Immigration and Nationality Act to provide secure borders and to give long-term resident youth the ability to contribute to the safety and economic growth of the United States and for other purposes.CommentsClose CommentsPermalink

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Assisting Children and Helping them Improve their Educational Value for Employment Act’ or the ‘ACHIEVE Act’.CommentsClose CommentsPermalink

SEC. 2. CONDITIONAL NONIMMIGRANT STATUS FOR CERTAIN ALIENS WHO ENTERED THE UNITED STATES AS CHILDREN.

Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended--CommentsClose CommentsPermalink





(1) in subparagraph (T)(iii), by striking the period at the end and inserting a semicolon;CommentsClose CommentsPermalink





(2) in subparagraph (U)(iii), by striking ‘or’ at the end;CommentsClose CommentsPermalink





(3) in subparagraph (V)(ii)(II), by striking the period at the end and inserting a semicolon; andCommentsClose CommentsPermalink





(4) by adding at the end the following:CommentsClose CommentsPermalink





‘(W)(i) an alien whose nonimmigrant status in the United States is on a conditional basis pursuant to this clause and section 214(s) and the alien has shown with clear and convincing evidence that the alien--CommentsClose CommentsPermalink





‘(I) was younger than 14 years of age on the date on which the alien initially entered the United States;CommentsClose CommentsPermalink





‘(II) has maintained a continuous physical presence in the United States during the 5-year period immediately preceding the date of the enactment of the ACHIEVE Act;CommentsClose CommentsPermalink





‘(III) initially entered the United States on a date that was prior to the date that was 5 years prior to the date of the enactment of the ACHIEVE Act;CommentsClose CommentsPermalink





‘(IV) has been a person of good moral character since the date on which the alien initially entered the United States;CommentsClose CommentsPermalink





‘(V) is not inadmissible under paragraph (1), (2), (3), (4), (5), (6)(B), (6)(C), (6)(E), (6)(F), (6)(G), (8), (9)(A), or (10) of section 212(a);CommentsClose CommentsPermalink





‘(VI) is not deportable under paragraph (1)(E), (1)(G), (2), (3)(B), (3)(C), (3)(D), (4), (5), or (6) of section 237(a);CommentsClose CommentsPermalink





‘(VII) has not been convicted of a felony, any offense that may be described as a crime of moral turpitude under this Act, or a misdemeanor under Federal or State law, punishable by imprisonment for more than 30 days, unless such misdemeanor is the result of a traffic violation that does not involve the applicant being under the influence of alcohol or any substance listed in Schedule I of the Controlled Substances Act (Public Law 91-513);CommentsClose CommentsPermalink





‘(VIII) 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;CommentsClose CommentsPermalink





‘(IX) has earned a high school diploma from a high school physically located in the United States or obtained a general education development certificate in the United States and--CommentsClose CommentsPermalink





‘(aa) is enlisted, or is intending to enlist (as documented in accordance with section 214(s)(3)(I)), in one of the branches of the Armed Forces (which has the meaning given the term ‘armed forces’ in section 101(a) of title 10, United States Code);CommentsClose CommentsPermalink





‘(bb) is admitted as a student to an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965), which is physically located in the United States;CommentsClose CommentsPermalink





‘(cc) has earned a bachelor’s degree or an associate’s degree from an institution of higher education; orCommentsClose CommentsPermalink





‘(dd) has served for a period of at least 4 years in one of the branches of the Armed Forces and was not dishonorably discharged;CommentsClose CommentsPermalink





‘(X) has never been under a final administrative or judicial order of exclusion, deportation, or removal, unless the alien--CommentsClose CommentsPermalink





‘(aa) remained in the United States under the color of law after the order was issued; orCommentsClose CommentsPermalink





‘(bb) received the order before reaching 16 years of age; andCommentsClose CommentsPermalink





‘(XI)(aa) was younger than 29 years of age on the date of the enactment of the ACHIEVE Act; orCommentsClose CommentsPermalink





‘(bb) in the case of an alien who had earned a bachelor’s degree or an associate’s degree prior to such date of enactment from an institution of higher education, was younger than 32 years of age on such date of enactment;CommentsClose CommentsPermalink





‘(ii) an alien whose nonimmigrant status in the United States is on a conditional basis pursuant to this clause and section 214(s) and has shown with clear and convincing evidence that the alien--CommentsClose CommentsPermalink





‘(I) was a conditional nonimmigrant described in clause (i) for a period of not less than 6 years and during such period--CommentsClose CommentsPermalink





‘(aa) has not violated any of the requirements of clause (i);CommentsClose CommentsPermalink





‘(bb) has not become a public charge; andCommentsClose CommentsPermalink





‘(cc) has not abandoned the alien’s residence in the United States;CommentsClose CommentsPermalink





‘(II) before or during such period of conditional nonimmigrant status--CommentsClose CommentsPermalink





‘(aa) obtained a bachelor’s degree from an institution of higher education and, if such degree was obtained before the alien was granted such status, was employed in the United States for a period of not less than 4 years;CommentsClose CommentsPermalink





‘(bb) served at least 4 years in one of the branches of the Armed Forces and, if discharged from the military, was not discharged dishonorably; orCommentsClose CommentsPermalink





‘(cc) obtained an associate’s degree from an institution of higher education, or a substantially equivalent degree from a technical or vocational school that is accredited by the Accrediting Commission of Career Schools and Colleges, and was employed in the United States for a period of not less than 30 months; andCommentsClose CommentsPermalink





‘(III)(aa) has an offer of employment in the United States;CommentsClose CommentsPermalink





‘(bb) is employed in the United States; orCommentsClose CommentsPermalink





‘(cc) is pursuing a graduate degree at an institution of higher education; orCommentsClose CommentsPermalink





‘(iii) an alien who has shown with clear and convincing evidence that the alien--CommentsClose CommentsPermalink





‘(I) was a conditional nonimmigrant under clause (i) for a period of not less than 6 years and had conditional nonimmigrant status under clause (ii) for a period of not less than 4 years and during both such periods--CommentsClose CommentsPermalink





‘(aa) was in compliance with all requirements for such status during such periods;CommentsClose CommentsPermalink





‘(bb) did not become a public charge; andCommentsClose CommentsPermalink





‘(cc) did not abandon the alien’s residence in the United States; andCommentsClose CommentsPermalink





‘(II) while in such status pursuant to clause (ii)--CommentsClose CommentsPermalink





‘(aa) was employed in the United States for a period of 36 months; orCommentsClose CommentsPermalink





‘(bb) was enrolled in a graduate degree program at an institution of higher education, or obtained a graduate degree from an institution of higher education.’.CommentsClose CommentsPermalink

SEC. 3. ADMISSION AND CANCELLATION OF REMOVAL OF W CONDITIONAL NONIMMIGRANTS.

(a) Process for Cancellation of Removal and Adjustment to W-1 Conditional Nonimmigrant Status- Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(s) W Conditional Nonimmigrant Status-CommentsClose CommentsPermalink





‘(1) DEFINITIONS- In this subsection:CommentsClose CommentsPermalink





‘(A) ARMED FORCES- The term ‘Armed Forces’ has the meaning given the term ‘armed forces’ in section 101(a) of title 10, United States Code.CommentsClose CommentsPermalink





‘(B) INSTITUTION OF HIGHER EDUCATION- The term ‘institution of higher education’ has the meaning given such term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1002), except that the term does not include an institution of higher education outside the United States.CommentsClose CommentsPermalink





‘(C) SECRETARY- Except as otherwise specifically provided, the term ‘Secretary’ means the Secretary of Homeland Security.CommentsClose CommentsPermalink





‘(D) W-1 CONDITIONAL NONIMMIGRANT- The term ‘W-1 conditional nonimmigrant’ means an alien granted nonimmigrant status pursuant to clause (i) of section 101(a)(15)(W) and in compliance with this subsection.CommentsClose CommentsPermalink





‘(E) W-2 CONDITIONAL NONIMMIGRANT- The term ‘W-2 conditional nonimmigrant’ means an alien granted nonimmigrant status pursuant to clause (ii) of section 101(a)(15)(W) and in compliance with this subsection.CommentsClose CommentsPermalink





‘(F) W-3 NONIMMIGRANT- The term ‘W-3 nonimmigrant’ means an alien granted nonimmigrant status pursuant to clause (iii) of section 101(a)(15)(W) and in compliance with this subsection.CommentsClose CommentsPermalink





‘(2) GENERAL CONDITIONS-CommentsClose CommentsPermalink





‘(A) IN GENERAL- An alien applying for or granted W-1 conditional nonimmigrant status, W-2 conditional nonimmigrant status, or W-3 nonimmigrant status shall be subject to the following general conditions:CommentsClose CommentsPermalink





‘(i) STATUS BENEFIT SOLELY FOR ALIEN- Any nonimmigrant status described in section 101(a)(15)(W) is solely for the benefit of the alien on whom it is conferred. No dependents, lineal ascendants, or collateral ascendants of the alien on whom such status is conferred may obtain any immigration benefit as a result of such conferral of status while the principal alien remains in any such nonimmigrant status.CommentsClose CommentsPermalink





‘(ii) PROHIBITION ON STATUS BENEFIT FOR CULPABLE FAMILY MEMBER- Any relative of an alien granted nonimmigrant status described in section 101(a)(15)(W) who assisted the alien’s unlawful entry or unlawful presence into the United States is prohibited from benefitting from such alien’s status while the principal alien remains in such nonimmigrant status.CommentsClose CommentsPermalink





‘(iii) STATUS DURING PENDENCY OF APPLICATION- An alien shall be deemed to be in the conditional nonimmigrant or nonimmigrant status applied for during the period in which the alien’s application for such status is pending. Time spent during the pendency of the application process shall not count against the alien for the purpose of calculating the duration of the alien’s valid status under any of the categories set forth in section 101(a)(15)(W). While the alien’s application for such status is pending, the alien may not receive any of the benefits described in clauses (iv) and (v).CommentsClose CommentsPermalink





‘(iv) EMPLOYMENT- An alien granted such status shall be authorized to be employed in the United States incident to such status. If the alien is a student described in clause (i) or (ii) of section 101(a)(15)(W), the alien’s employment shall be authorized by the Secretary if the alien provides proof to the Secretary that the alien is enrolled in at least 6 credit hours at an institution of higher learning (as defined under section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).CommentsClose CommentsPermalink





‘(v) TRAVEL- An alien granted such status may travel outside the United States and may be admitted (if otherwise admissible) upon return to the United States if--CommentsClose CommentsPermalink





‘(I) the alien is the bearer of a valid, unexpired nonimmigrant visa document referred to in clause (vii); andCommentsClose CommentsPermalink





‘(II) the alien’s absence from the United States is not for any period longer than 90 days in duration.CommentsClose CommentsPermalink





‘(vi) EVIDENCE OF STATUS- The Secretary of State shall issue to each alien granted any such status a highly tamper-resistant document that--CommentsClose CommentsPermalink





‘(I) provides evidence of the alien’s valid nonimmigrant visa status, the alien’s lawful presence in the United States, and the alien’s authorization for employment in the United States;CommentsClose CommentsPermalink





‘(II) contains the alien’s biographic and biometric information; andCommentsClose CommentsPermalink





‘(III) contains a unique watermark and other uniquely designed physical security features, which are to be determined by the Secretary, to prevent the tampering, counterfeiting, and unauthorized duplication of such document.CommentsClose CommentsPermalink





‘(vii) NO FOREIGN RESIDENCE- An alien granted such status is not required to have a foreign residence which the alien has no intention of abandoning.CommentsClose CommentsPermalink





‘(viii) PROHIBITION ON BENEFITS- An alien granted such status--CommentsClose CommentsPermalink





‘(I) is not eligible for any Federal means-tested public welfare benefits;CommentsClose CommentsPermalink





‘(II) is not eligible for any Federal student loans, Federal work-study programs, or any other services or benefits provided under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.); andCommentsClose CommentsPermalink





‘(III) is not considered to be lawfully present in the United States for purposes of--CommentsClose CommentsPermalink

‘(aa) section 36B of the Internal Revenue Code of 1986; orCommentsClose CommentsPermalink

‘(bb) section 1402 of the Patient Protection and Affordable Care Act (42 U.S.C. 18071).CommentsClose CommentsPermalink

‘(ix) CHANGE OF STATUS-CommentsClose CommentsPermalink





‘(I) W-1 CONDITIONAL NONIMMIGRANT- Notwithstanding any other provision of law, an alien may not change or adjust from W-1 conditional nonimmigrant status to any other legal status except for W-2 conditional nonimmigrant status.CommentsClose CommentsPermalink





‘(II) W-2 CONDITIONAL NONIMMIGRANT- Notwithstanding any other provision of law, an alien may not change or adjust from W-2 conditional nonimmigrant status to any other legal status except for W-3 nonimmigrant status.CommentsClose CommentsPermalink





‘(x) REPORTING REQUIREMENT- Notwithstanding any other provision of law, each alien granted W-1 conditional nonimmigrant status or W-2 conditional nonimmigrant status shall submit, every 6 months, a report to the Secretary that contains the alien’s name, the alien’s current address, and sufficient documentary evidence to demonstrate that the alien is in compliance with the requirements of such status.CommentsClose CommentsPermalink





‘(B) USE OF SURCHARGE- Notwithstanding any other provision of law, including section 286, any surcharge collected under this subsection shall be deposited as offsetting receipts in the general fund of the Treasury and shall not be available for obligation or expenditure.CommentsClose CommentsPermalink





‘(C) EXCLUSIVE JURISDICTION-CommentsClose CommentsPermalink





‘(i) IN GENERAL- Except as provided under clause (ii), the Secretary shall have exclusive jurisdiction to determine eligibility for relief under section 101(a)(15)(W).CommentsClose CommentsPermalink





‘(ii) EXCEPTION- If an alien has been placed into deportation, exclusion, or removal proceedings before or after filing an initial application for cancellation of removal and adjustment to conditional nonimmigrant status or adjustment of status under the ACHIEVE Act, the Attorney General shall have exclusive jurisdiction and shall assume all the powers and duties of the Secretary until proceedings are terminated, or a final order of deportation, exclusion, or removal is entered.CommentsClose CommentsPermalink





‘(iii) RESUMPTION OF JURISDICTION- Upon the termination of proceedings or if a final order of deportation, exclusion, or removal is initiated, the Secretary shall resume all powers and duties delegated to the Secretary with respect to such alien under this Act, the ACHIEVE Act, and other relevant Federal law.CommentsClose CommentsPermalink





‘(3) W-1 CONDITIONAL NONIMMIGRANTS-CommentsClose CommentsPermalink





‘(A) ELIGIBILITY- An alien is eligible for W-1 conditional nonimmigrant status if the alien meets the requirements under section 101(a)(15)(W)(i) and this paragraph.CommentsClose CommentsPermalink





‘(B) CANCELLATION OF REMOVAL- The Secretary shall cancel the removal of an alien seeking W-1 conditional nonimmigrant status and adjust the status of such alien to that of a W-1 conditional nonimmigrant if the alien submits to the Secretary a timely application for such status that includes clear and convincing evidence that the alien is eligible for such status.CommentsClose CommentsPermalink





‘(C) SUBMISSION OF APPLICATION- An application for W-1 conditional nonimmigrant status for an alien is timely if such application is submitted to the Secretary not later than--CommentsClose CommentsPermalink





‘(i) the date that is 1 year after the date of the enactment of this subsection; orCommentsClose CommentsPermalink





‘(ii) the date that is 1 year after the date on which the alien earned a high school diploma or obtained a general education development certificate in the United States if the alien is younger than 22 years of age on the date of the enactment of this subsection.CommentsClose CommentsPermalink





‘(D) SURCHARGE- Each application for W-1 conditional nonimmigrant status shall be accompanied by a surcharge in the amount of $525, which shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services.CommentsClose CommentsPermalink





‘(E) OTHER REQUIREMENTS- The Secretary may not cancel the removal of an alien under subparagraph (B) or grant W-1 conditional nonimmigrant status to the alien unless the following conditions are met:CommentsClose CommentsPermalink





‘(i) BIOMETRIC DATA- The alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric or biographic data because of a physical impairment.CommentsClose CommentsPermalink





‘(ii) BACKGROUND CHECKS-CommentsClose CommentsPermalink





‘(I) REQUIREMENT FOR BACKGROUND CHECKS- The Secretary utilizes the biometric, biographic, and other data submitted by the alien, as requested by the Secretary--CommentsClose CommentsPermalink

‘(aa) to conduct security and law enforcement background checks of the alien; andCommentsClose CommentsPermalink

‘(bb) to determine if there is any criminal, national security, or other factor that would render the alien ineligible for such status.CommentsClose CommentsPermalink

‘(II) TIMING OF CHECKS- The security and law enforcement background checks required under this clause are completed to the satisfaction of the Secretary.CommentsClose CommentsPermalink





‘(iii) MEDICAL EXAMINATION- The alien undergoes a medical observation and examination in accordance with the policies and procedures established by the Secretary, with the concurrence of the Secretary of Health and Human Services.CommentsClose CommentsPermalink





‘(iv) MILITARY SELECTIVE SERVICE- The alien has registered under the Military Selective Service Act (50 U.S.C. App. 451 et seq.), if the alien is subject to such registration under that Act.CommentsClose CommentsPermalink





‘(v) CITIZENSHIP REQUIREMENT- Except as provided in subclause (II), the alien demonstrates that the alien satisfies the requirements of section 312(a).CommentsClose CommentsPermalink





‘(vi) CONTINUOUS PRESENCE AND INITIAL ENTRY- The alien has maintained continuous physical presence in the United States for the 5-year period immediately preceding the date of the enactment of the ACHIEVE Act, and the alien’s initial date of entry was on or before the date that is 5 years before the date of the enactment of the ACHIEVE Act, which shall be determined as follows:CommentsClose CommentsPermalink





‘(I) BURDEN OF EVIDENCE- The alien shall have the burden to establish the alien’s continuous presence in the United States by clear and convincing evidence.CommentsClose CommentsPermalink





‘(II) ACCEPTABLE FORMS OF EVIDENCE- The alien may submit types of independently verifiable documents as evidence of continuous physical presence in the United States, entry into the United States, or both. A single document listed under this subclause shall be insufficient to determine whether the applicant meets the burden described in subclause (I). The alien shall submit at least 2 forms of the documents listed under this subclause with the applicant’s application, which, in the discretion of the Secretary, may still be insufficient to meet the burden described in subclause (I). The alien may meet such burden by submitting two or more of the following documents:CommentsClose CommentsPermalink

‘(aa) An order of removal, exclusion, or deportation issued by an Immigration Judge or the Board of Immigration Appeals.CommentsClose CommentsPermalink

‘(bb) An I-94 arrival-departure document.CommentsClose CommentsPermalink

‘(cc) A valid, expired or unexpired passport reflecting the date of entry into the United States.CommentsClose CommentsPermalink

‘(dd) Certified school records from a recognized United States Primary or Secondary School for kindergarten through grade 12.CommentsClose CommentsPermalink

‘(ee) Certified medical records from a recognized hospital or health care provider in the United States.CommentsClose CommentsPermalink

‘(ff) A sworn affidavit from a citizen of the United States attesting to the alien’s good moral character and the length and intimacy of the relationship between the alien and the citizen. The citizen signing the affidavit is subject to the penalty of perjury and if found guilty is subject to a maximum of $10,000 fine, 5 years in prison, or both.CommentsClose CommentsPermalink

‘(III) ADDITIONAL FORMS OF EVIDENCE- The Secretary may--CommentsClose CommentsPermalink

‘(aa) designate additional documents that may be submitted as evidence of physical presence or initial entry into the United States according to the requirements of 101(a)(15)(W)(i); andCommentsClose CommentsPermalink

‘(bb) set such terms and conditions on the use of such documents as is necessary to verify and confirm the identity of the applicant and the legitimacy of the document to prevent fraudulent admissions.CommentsClose CommentsPermalink

‘(vii) STAY OF REMOVAL-CommentsClose CommentsPermalink





‘(I) IN GENERAL- The Secretary may not remove any alien who--CommentsClose CommentsPermalink

‘(aa) has a pending application for W-1 nonimmigrant status; andCommentsClose CommentsPermalink

‘(bb) establishes to the Secretary, by a preponderance of the evidence, that the alien is eligible for such status.CommentsClose CommentsPermalink

‘(II) EVIDENTIARY STANDARD- An alien applying for W-1 nonimmigrant status has met the requirement for a stay of removal if his or her application for such status meets at least 2 of the 3 following evidentiary requirements:CommentsClose CommentsPermalink

‘(aa) Certified school records described in clause (vi)(II)(dd).CommentsClose CommentsPermalink

‘(bb) Certified medical records described in clause (vi)(II)(ee).CommentsClose CommentsPermalink

‘(cc) A sworn affidavit described in clause (vi)(II)(ff).CommentsClose CommentsPermalink

‘(F) CALCULATION OF CONTINUOUS PRESENCE UNDER W-1 CONDITIONAL NONIMMIGRANT STATUS-CommentsClose CommentsPermalink





‘(i) TERMINATION OF CONTINUOUS PERIOD- For purposes of this section, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal under subparagraph (B) shall not terminate when the alien is served a notice to appear under section 239(a).CommentsClose CommentsPermalink





‘(ii) TREATMENT OF CERTAIN BREAKS IN PRESENCE UNDER W-1 STATUS-CommentsClose CommentsPermalink





‘(I) IN GENERAL- Subject to subclauses (II) and (III), an alien shall be considered to have failed to maintain continuous physical presence and abandoned the alien’s residence in the United States if the alien has departed from the United States for any period in excess of 90 days or for any aggregated period spent outside of the United States in excess of 180 days.CommentsClose CommentsPermalink





‘(II) EXTENSIONS FOR EXCEPTIONAL CIRCUMSTANCES- The Secretary may extend the time periods described in subclause (I) if the alien demonstrates that the failure to timely return to the United States was due to exceptional circumstances. The exceptional circumstances determined sufficient to justify an extension should be no less compelling than serious illness of the alien, or death or serious illness of a parent, grandparent, sibling, or child. Such an extension may not exceed 60 days.CommentsClose CommentsPermalink





‘(III) EXCEPTION FOR MILITARY SERVICE- An alien who is absent from the United States due to active service in the Armed Forces has not abandoned the alien’s residence in the United States during the period of such service and any such absence may not be counted in the determination of aggregate time spent outside of the United States for the purposes of determining the abandonment of the alien’s residence.CommentsClose CommentsPermalink





‘(G) PERIOD OF STATUS-CommentsClose CommentsPermalink





‘(i) IN GENERAL- W-1 conditional nonimmigrant status shall be valid for a period of 6 years, subject to termination under subparagraph (H).CommentsClose CommentsPermalink





‘(ii) PROHIBITION ON EXTENSION- The Secretary may not renew or extend the 6-year period referred to in clause (i) for any alien.CommentsClose CommentsPermalink





‘(H) TERMINATION OF STATUS-CommentsClose CommentsPermalink





‘(i) IN GENERAL- The Secretary shall terminate the W-1 conditional nonimmigrant status of any alien if the Secretary determines that the alien--CommentsClose CommentsPermalink





‘(I) ceases to meet the requirements of this section or of 101(a)(15)(W)(i);CommentsClose CommentsPermalink





‘(II) has become a public charge; orCommentsClose CommentsPermalink





‘(III) has received a dishonorable discharge from the Armed Forces.CommentsClose CommentsPermalink





‘(ii) RETURN TO PREVIOUS IMMIGRATION STATUS- Any alien whose W-1 conditional nonimmigrant status is terminated under clause (i)--CommentsClose CommentsPermalink





‘(I) shall return to the immigration status the alien had immediately before receiving W-1 conditional nonimmigrant status; andCommentsClose CommentsPermalink





‘(II) shall be subject to immediate removal.CommentsClose CommentsPermalink





‘(I) INTENDING TO ENLIST- An alien does not meet the intending to enlist requirement set forth in section 101(a)(15)(W)(i)(IX)(aa) unless the alien submits, to the Secretary of Homeland Security, a document obtained from a branch of the Armed Forces that contains--CommentsClose CommentsPermalink





‘(i) the alien’s name and current address;CommentsClose CommentsPermalink





‘(ii) an attestation of the alien’s intent to enlist; andCommentsClose CommentsPermalink





‘(iii) an attestation that the alien meets the applicable moral, medical, and mental standards for enlistment.’.CommentsClose CommentsPermalink





(b) Regulations-CommentsClose CommentsPermalink





(1) INITIAL PUBLICATION- Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall publish regulations to carry out paragraphs (2) and (3) of subsection (s) of section 214 of the Immigration and Nationality Act (8 U.S.C. 1184), as added by subsection (a).CommentsClose CommentsPermalink





(2) INTERIM REGULATIONS- Notwithstanding section 553 of title 5, United States Code, the regulations required by paragraph (1) shall be effective, on an interim basis, immediately upon publication but may be subject to change and revision after public notice and opportunity for a period of public comment.CommentsClose CommentsPermalink





(3) FINAL REGULATIONS- Within a reasonable time after publication of the interim regulations in accordance with this subsection, the Secretary of Homeland Security shall publish final regulations implementing this section.CommentsClose CommentsPermalink

SEC. 4. W-2 CONDITIONAL NONIMMIGRANT STATUS.

Section 214(s) of the Immigration and Nationality Act (8 U.S.C. 1184), as added by section 3, is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(4) W-2 CONDITIONAL NONIMMIGRANT STATUS-CommentsClose CommentsPermalink





‘(A) ELIGIBILITY-CommentsClose CommentsPermalink





‘(i) IN GENERAL- An alien is eligible for W-2 conditional nonimmigrant status if the alien meets the requirements of clause (ii) of section 101(a)(15)(W) and this paragraph.CommentsClose CommentsPermalink





‘(ii) PROHIBITION ON APPLICATIONS FROM OTHER NONIMMIGRANTS- Only an alien granted W-1 conditional nonimmigrant status is eligible to apply for W-2 conditional nonimmigrants status.CommentsClose CommentsPermalink





‘(B) CHANGE OF STATUS- The Secretary shall change the status of an alien granted W-1 conditional nonimmigrant status to that of a W-2 conditional nonimmigrant if the alien submits to the Secretary a timely application for such status that includes clear and convincing evidence that the alien is eligible for such status.CommentsClose CommentsPermalink





‘(C) SUBMISSION OF APPLICATION- An application for W-2 conditional nonimmigrant status for an alien is timely if such application is submitted to the Secretary--CommentsClose CommentsPermalink





‘(i) not earlier than 1 year before the applicant’s valid W-1 status expires; andCommentsClose CommentsPermalink





‘(ii) not later than the date on which the applicant’s valid W-1 status expires.CommentsClose CommentsPermalink





‘(D) SURCHARGE- Each application for W-2 conditional nonimmigrant status shall be accompanied by a surcharge in the amount of $750, which shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services.CommentsClose CommentsPermalink





‘(E) OTHER REQUIREMENTS- The Secretary may not cancel the removal of an alien under subparagraph (B) or grant W-2 conditional nonimmigrant status to the alien unless the following conditions are met:CommentsClose CommentsPermalink





‘(i) W-1 CONDITIONAL NONIMMIGRANT STATUS- Except as provided in clause (ii), the alien was granted W-1 conditional nonimmigrant status for a period of not less than 6 years and during such period the alien--CommentsClose CommentsPermalink





‘(I) maintained compliance with section 101(a)(15)(W)(i) and the applicable requirements of this subsection, including the reporting requirement set out in paragraph (2); andCommentsClose CommentsPermalink





‘(II) demonstrated good moral character.CommentsClose CommentsPermalink





‘(ii) CONTINUOUS PRESENCE- The alien has maintained continuous physical presence in the United States during such period, as calculated under subparagraph (F).CommentsClose CommentsPermalink





‘(iii) DISABILITY EXCEPTION-CommentsClose CommentsPermalink





‘(I) IN GENERAL- The Secretary of Homeland Security may grant a hardship waiver to any alien who proves, by clear and convincing evidence, that--CommentsClose CommentsPermalink

‘(aa) the alien became afflicted with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) during the time in which the alien was granted status under section 101(a)(15)(W)(i); andCommentsClose CommentsPermalink

‘(bb) such disability is directly attributable to the alien’s inability to meet the requirements under clause (i)(I).CommentsClose CommentsPermalink

‘(II) NOTICE- The alien may not be granted a hardship waiver under this clause unless the alien provides notice of the alien’s disability to United States Citizenship and Immigration Services not later than 120 days after the date on which the alien became afflicted with a disability.CommentsClose CommentsPermalink





‘(F) CALCULATION OF CONTINUOUS PRESENCE- An alien shall be considered to have failed to maintain continuous physical presence in the United States while in W-2 conditional nonimmigrant status if the alien has departed from the United States for any period in excess of 90 days or for any aggregated period spent outside of the United States in excess of 120 days, calculated as described in paragraph (3)(F).CommentsClose CommentsPermalink





‘(G) PERIOD OF STATUS- W-2 conditional nonimmigrant status shall be valid for a period of 4 years, subject to termination under subparagraph (H).CommentsClose CommentsPermalink





‘(H) TERMINATION OF STATUS-CommentsClose CommentsPermalink





‘(i) IN GENERAL- The Secretary shall terminate the W-2 conditional nonimmigrant status of any alien if the Secretary determines that the alien--CommentsClose CommentsPermalink





‘(I) ceases to meet the requirements of this section or of 101(a)(15)(W)(ii);CommentsClose CommentsPermalink





‘(II) has become a public charge; orCommentsClose CommentsPermalink





‘(III) has received a dishonorable discharge from the Armed Forces.CommentsClose CommentsPermalink





‘(ii) RETURN TO UNDOCUMENTED STATUS- Any alien whose W-2 conditional nonimmigrant status is terminated under clause (i) shall not have any lawful immigration status in the United States and shall be subject to immediate removal.CommentsClose CommentsPermalink





‘(I) SPECIAL RULE FOR ALIENS DISCHARGED FROM THE MILITARY-CommentsClose CommentsPermalink





‘(i) HONORABLE DISCHARGE- An alien who has served 4 years in a branch of the Armed Forces and is honorably discharged from such service--CommentsClose CommentsPermalink





‘(I) may not be required to apply for W-2 conditional nonimmigrant status or W-3 nonimmigrant status; andCommentsClose CommentsPermalink





‘(II) during the 1-year period beginning on the date of such honorable discharge, may apply for lawful permanent resident status under a special process to be determined by the Secretary in regulations.CommentsClose CommentsPermalink





‘(ii) GENERAL DISCHARGE-CommentsClose CommentsPermalink





‘(I) REQUIREMENT FOR REVIEW- An alien who is discharged from service in a branch of the Armed Services pursuant to a general discharge, which includes any discharge that is not an honorable discharge or a dishonorable discharge, may not remain in W-1 conditional nonimmigrant status or receive W-2 conditional nonimmigrant status or W-3 nonimmigrant status until the Secretary, in consultation with the Secretary of Defense, reviews the facts and circumstances of such discharge.CommentsClose CommentsPermalink





‘(II) DISPOSITION- Based on the outcome of a review conducted under subclause (I), the Secretary shall, with respect to an alien, take one of the following actions:CommentsClose CommentsPermalink

‘(aa) Terminate the alien’s status under subparagraph (W) of section 101(a)(15).CommentsClose CommentsPermalink

‘(bb) Permit the alien to remain in status under such subparagraph and continue to apply for the next appropriate subsequent status under such subparagraph, pursuant to the procedures set out in this subsection.’.CommentsClose CommentsPermalink

SEC. 5. W-3 NONIMMIGRANT STATUS.

(a) In General- Section 214(s) of the Immigration and Nationality Act (8 U.S.C. 1184), as added by section 3 and amended by section 4, is further amended by adding at the end the following:CommentsClose CommentsPermalink





‘(5) W-3 NONIMMIGRANT STATUS-CommentsClose CommentsPermalink





‘(A) ELIGIBILITY-CommentsClose CommentsPermalink





‘(i) IN GENERAL- An alien is eligible for W-3 nonimmigrant status if the alien meets the requirements of clause (iii) of section 101(a)(15)(W) and this paragraph.CommentsClose CommentsPermalink





‘(ii) PROHIBITION ON APPLICATIONS FROM OTHER NONIMMIGRANTS- Only an alien granted W-2 conditional nonimmigrant status is eligible to apply for W-3 nonimmigrant status.CommentsClose CommentsPermalink





‘(B) CHANGE OF STATUS- The Secretary shall change the status of such alien to that of a W-3 nonimmigrant if the alien submits to the Secretary a timely application for such status that includes clear and convincing evidence that the alien is eligible for such status.CommentsClose CommentsPermalink





‘(C) SUBMISSION OF APPLICATION- An application for W-3 nonimmigrant status for an alien is timely if such application is submitted to the Secretary during the 1-year period prior to the expiration of the alien’s W-2 conditional nonimmigrant status.CommentsClose CommentsPermalink





‘(D) SURCHARGE-CommentsClose CommentsPermalink





‘(i) INITIAL APPLICATION- Each application for W-3 nonimmigrant status shall be accompanied by a surcharge in the amount of $2,000, which shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services.CommentsClose CommentsPermalink





‘(ii) RENEWALS- Any application for renewal of W-3 nonimmigrant status after the initial grant of such status shall be accompanied by a $525 surcharge.CommentsClose CommentsPermalink





‘(E) OTHER REQUIREMENTS- The Secretary may not cancel the removal of an alien under subparagraph (B) or grant W-3 nonimmigrant status to the alien unless the following conditions are met:CommentsClose CommentsPermalink





‘(i) W-2 CONDITIONAL NONIMMIGRANT STATUS- The alien was granted W-2 conditional nonimmigrant status for a period of not less than 4 years and during such period the alien--CommentsClose CommentsPermalink





‘(I) maintained compliance with section 101(a)(15)(W)(ii) and the applicable requirements of this subsection, including the reporting requirement set out in paragraph (2); andCommentsClose CommentsPermalink





‘(II) demonstrated good moral character.CommentsClose CommentsPermalink





‘(ii) DISABILITY EXCEPTION-CommentsClose CommentsPermalink





‘(I) IN GENERAL- The Secretary of Homeland Security may grant a hardship waiver to any alien who proves, by clear and convincing evidence, that--CommentsClose CommentsPermalink

‘(aa) the alien became afflicted with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) during the time in which the alien was granted status under clause (i) or (ii) of section 101(a)(15)(W); andCommentsClose CommentsPermalink

‘(bb) such disability is directly attributable to the alien’s inability to meet the requirements under clause (i)(I).CommentsClose CommentsPermalink

‘(II) NOTICE- The alien may not be granted a hardship waiver under this clause unless the alien provides notice of the alien’s disability to United States Citizenship and Immigration Services not later than 120 days after the date on which the alien became afflicted with a disability.CommentsClose CommentsPermalink





‘(iii) UPDATED BIOMETRIC AND BIOGRAPHIC DATA- The alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric or biographic data because of a physical impairment.CommentsClose CommentsPermalink





‘(iv) UPDATED BACKGROUND CHECKS- The alien completes, to the satisfaction of the Secretary, new security and law enforcement background checks, as described in paragraph (3)(E)(ii).CommentsClose CommentsPermalink





‘(v) PAYMENT OF FEDERAL TAXES-CommentsClose CommentsPermalink





‘(I) IN GENERAL- The alien shall satisfy any applicable Federal tax liability due and owing on the date the alien applies for W-3 nonimmigrant status.CommentsClose CommentsPermalink





‘(II) APPLICABLE FEDERAL TAX LIABILITY- For purposes of subclause (I), the term ‘applicable Federal tax liability’ means liability for Federal taxes imposed under the Internal Revenue Code of 1986, including any penalties and interest thereon.CommentsClose CommentsPermalink





‘(vi) CONTINUOUS PRESENCE- The alien has maintained continuous physical presence in the United States during such period, as calculated under subparagraph (F).CommentsClose CommentsPermalink





‘(F) CALCULATION OF CONTINUOUS PRESENCE- An alien shall be considered to have failed to maintain continuous physical presence in the United States while in W-1 or W-2 conditional nonimmigrant status if the alien has departed from the United States for any period in excess of 90 days or for any aggregated period spent outside of the United States in excess 180 days while present in the United States in W-1 conditional nonimmigrant status or for any aggregate period over 120 days while in W-2 conditional nonimmigrant status, calculated as described in paragraph (3)(F).CommentsClose CommentsPermalink





‘(G) PERIOD OF STATUS-CommentsClose CommentsPermalink





‘(i) IN GENERAL- W-3 conditional nonimmigrant status shall be valid for an initial period of 5 years, subject to termination under subparagraph (H).CommentsClose CommentsPermalink





‘(ii) RENEWAL- The Secretary may renew the 4-year period referred to in clause (i) for an unlimited number of 4-year periods.CommentsClose CommentsPermalink





‘(H) TERMINATION OF STATUS-CommentsClose CommentsPermalink





‘(i) IN GENERAL- The Secretary shall terminate the W-3 nonimmigrant status of any alien if the Secretary determines that the alien--CommentsClose CommentsPermalink





‘(I) ceases to meet the requirements of this section or of 101(a)(15)(W)(iii);CommentsClose CommentsPermalink





‘(II) has become a public charge; orCommentsClose CommentsPermalink





‘(III) has received a dishonorable discharge from the Armed Forces.CommentsClose CommentsPermalink





‘(ii) RETURN TO UNDOCUMENTED STATUS- Any alien whose W-3 nonimmigrant status is terminated under clause (i) shall not have lawful immigration status in the United States.CommentsClose CommentsPermalink





‘(I) CHANGE OF STATUS- Nothing in this section or in any other provision of law, may prevent an alien granted W-3 nonimmigrant status from using any other lawful measures under this Act to change or adjust to another lawful nonimmigrant or immigrant status provided for in this Act.’.CommentsClose CommentsPermalink





(b) Dual Intent- Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by striking ‘(L) or (V) of section 101(a)(15)’ and inserting, ‘(L), (V), or (W)’.CommentsClose CommentsPermalink

SEC. 6. PENALTIES FOR FALSE STATEMENTS.

(a) Criminal Penalty- Chapter 75 of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(1) by redesignating section 1547 as section 1548;CommentsClose CommentsPermalink





(2) by inserting after section 1546 the following:CommentsClose CommentsPermalink

‘Sec. 1547. Fraud and misuse of the ACHIEVE Act

‘Any person who files an application for any benefit under the ACHIEVE Act, or an amendment made by such Act, and willfully and knowingly engages in fraud by falsifying, misrepresenting, concealing, or in any way failing to disclose a material fact or makes any false or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false or fraudulent statement or entry--CommentsClose CommentsPermalink





‘(1) shall be fined under this title, imprisoned not more than 5 years, or both;CommentsClose CommentsPermalink





‘(2) shall be placed into the immigration status that the person had before the person’s initial application for relief under section 101(a)(15)(W) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(W)); andCommentsClose CommentsPermalink





‘(3) shall be subject to immediate removal proceedings, in which the information that the person provided to the Secretary of Homeland Security during the person’s application process may be used.’; andCommentsClose CommentsPermalink





(3) in the chapter analysis, by striking the item relating to section 1547 and inserting the following:CommentsClose CommentsPermalink





‘1547. Fraud and misuse of the ACHIEVE Act.CommentsClose CommentsPermalink





‘1548. Alternative imprisonment maximum for certain offenses.’.CommentsClose CommentsPermalink





(b) Definition of Aggravated Felony- Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended--CommentsClose CommentsPermalink





(1) in subparagraph (T), by striking ‘and’ at the end;CommentsClose CommentsPermalink





(2) by redesignating subparagraph (U) as subparagraph (V); andCommentsClose CommentsPermalink





(3) by inserting after subparagraph (T) the following:CommentsClose CommentsPermalink





‘(U) an offense described in section 1547 of title 18, United States Code; and’.CommentsClose CommentsPermalink

SEC. 7. CONFIDENTIALITY OF APPLICANT INFORMATION.

Section 214(s)(2) of the Immigration and Nationality Act, as added by section 3(a), is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(D) PROHIBITIONS ON INFORMATION USAGE- Except as provided in subparagraphs (E) and (G), section 1547 of title 18, United States Code, and any provision of law that authorizes the use of applicant information collected under this subsection, no officer or employee of the United States may--CommentsClose CommentsPermalink





‘(i) use the information furnished by an individual pursuant to an application for nonimmigrant status under section 101(a)(15)(W) to initiate removal proceedings against the applicant or the applicant’s immediate family members;CommentsClose CommentsPermalink





‘(ii) make any publication in which the information furnished by any particular individual pursuant to an application for nonimmigrant status under section 101(a)(15)(W) can be identified; orCommentsClose CommentsPermalink





‘(iii) permit anyone other than an officer or employee of the United States Government or, in the case of an application filed with a designated entity, that designated entity, to examine such application.CommentsClose CommentsPermalink





‘(E) REQUIRED DISCLOSURE- The Attorney General or the Secretary shall provide the information furnished under this subsection, and any other information derived from such furnished information, to--CommentsClose CommentsPermalink





‘(i) a Federal, State, tribal, or local law enforcement agency, intelligence agency, national security agency, directorate of the Department of Homeland Security, court, or grand jury in connection with a criminal investigation or prosecution, a background check conducted pursuant to the Brady Handgun Violence Protection Act (Public Law 103-59; 107 Stat. 1536), or for homeland security or national security purposes, if such information is requested by such entity or consistent with an information sharing agreement or mechanism; orCommentsClose CommentsPermalink





‘(ii) an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).CommentsClose CommentsPermalink





‘(F) PENALTY- Any person who knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000, imprisoned not more than 5 years, or both.CommentsClose CommentsPermalink





‘(G) OBTAINING INFORMATION BY OTHER MEANS- Notwithstanding subparagraph (D), nothing in this subsection may be construed to limit the authority of Federal, State, or local law enforcement authorities to obtain information that was included by an applicant in their application by any other lawful, independent means otherwise authorized under Federal, State, or local law.’.CommentsClose CommentsPermalink

SEC. 8. MILITARY ENLISTMENT.

Section 504(b)(1) of title 10, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(D) An alien who qualifies as a nonimmigrant (as defined in section 101(a)(15)(W) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(W))).’.CommentsClose CommentsPermalink