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108th CONGRESS
2d Session
H. R. 3918
To amend the Immigration and Nationality Act to reunify families,
permit earned access to permanent resident status, provide protection
against unfair immigration-related employment practices, reform the
diversity visa program, provide adjustment of status for Haitians and
Liberian nationals, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 9, 2004
Ms. Jackson-Lee of Texas (for herself and Mr. Conyers) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to reunify families,
permit earned access to permanent resident status, provide protection
against unfair immigration-related employment practices, reform the
diversity visa program, provide adjustment of status for Haitians and
Liberian nationals, 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 ``Comprehensive Immigration Fairness
Reform Act of 2004''.
TITLE I--FAMILY REUNIFICATION
SEC. 101. PERMANENT APPLICATION OF SECTION 245(I).
Section 245(i) of the Immigration and Nationality Act (8 U.S.C.
1255(i)) is amended--
(1) by inserting ``and'' at the end of paragraph (1)(A);
(2) by amending paragraph (1)(B) to read as follows:
``(B) who is the beneficiary (including a spouse or
child of the principal alien) of--
``(i) a petition for classification under
section 204; or
``(ii) an application for a labor
certification under section 212(a)(5)(A);'';
(3) by striking paragraph (1)(C); and
(4) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security''.
SEC. 102. DISCRETIONARY WAIVER OF INADMISSIBILITY BASED ON UNLAWFUL
PRESENCE, FAILURE TO ATTEND REMOVAL PROCEEDINGS, AND
MISREPRESENTATIONS.
(a) In General.--Section 212(i) of the Immigration and Nationality
Act (8 U.S.C. 1182(i)) is amended to read as follows:
``(i) The Secretary of Homeland Security may waive the application
of subparagraph (A)(i) or (B), or clause (i) or (ii) of subparagraph
(C), of subsection (a)(6) in the case of an immigrant who is the
parent, spouse, son, or daughter of a United States citizen or of an
alien lawfully admitted to the United States for permanent residence,
if it is established to the satisfaction of the Secretary that the
refusal of admission to the United States of such immigrant would
result in hardship to the immigrant or to such citizen or lawful
permanent resident parent, spouse, son, or daughter.''.
(b) Conforming Amendments.--Section 212(a)(6) of such Act (8 U.S.C.
1182(a)(6)) is amended--
(1) in subparagraph (A), by adding at the end the
following:
``(iii) Waiver authorized.--For a provision
authorizing the waiver of clause (i), see
subsection (i).'';
(2) in subparagraph (B)--
(A) by inserting ``(i)'' after the subparagraph
heading; and
(B) by adding at the end the following:
``(ii) Waiver authorized.--For a provision
authorizing the waiver of clause (i), see
subsection (i).''; and
(3) in subparagraph (C)(iii), by inserting ``or (ii)''
after ``(i)''.
SEC. 103. GENERAL WAIVER FOR ALIENS PREVIOUSLY REMOVED AND FOR THE
UNLAWFUL PRESENCE BARS.
(a) In General.--Section 212(d) of the Immigration and Nationality
Act (8 U.S.C. 1182(d)) is amended by adding at the end the following:
``(14) The Secretary of Homeland Security may, in the discretion of
the Secretary, for humanitarian purposes, to assure family unity, or
when it is otherwise in the public interest, waive the application of
subparagraph (A) or (B)(i) of subsection (a)(9).''.
(b) Conforming Amendment.--Section 212(a)(9)(B) of such Act (8
U.S.C. 1182(a)(9)(B)) is amended by striking clause (v).
SEC. 104. ADDRESSING THE PROBLEM OF VISA NUMBER BACKLOGS FOR THE FAMILY
MEMBERS OF CITIZENS AND LAWFUL PERMANENT RESIDENTS.
(a) Classes of Nonimmigrant Aliens.--Section 101(a)(15)(K) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) is amended--
(1) by striking ``or'' at the end of clause (ii);
(2) by adding ``or'' at the end of clause (iii); and
(3) by adding at the end the following:
``(iv)(I) has concluded a valid marriage
with an alien lawfully admitted for permanent
residence, is the parent of a citizen of the
United States, or is the son or daughter of an
alien lawfully admitted for permanent residence
or a citizen of the United States; (II) is the
beneficiary of a petition to accord immigrant
status on the basis of such family relationship
that was filed under section 204 by such family
member; (III) has waited more than 6 months for
the approval of such petition or the
availability to the alien of an immigrant visa;
and (IV) seeks to enter the United States to
await the approval of such petition and the
availability to the alien of an immigrant
visa;''.
(b) Admission of Nonimmigrants.--Section 214(d) of such Act (8
U.S.C. 1184(d)) is amended--
(1) by striking ``(d)'' and inserting ``(d)(1)''; and
(2) by adding at the end the following:
``(2) A visa shall not be issued under the provisions of section
101(a)(15)(K)(iv) until the consular officer has received a petition
filed in the United States by the lawful permanent resident or citizen
relative of the applying alien and approved by the Secretary of
Homeland Security. The petition shall be in such form and contain such
information as the Secretary shall, by regulation, prescribe.''.
SEC. 105. WAIVER OF AGGRAVATED FELONY CONSEQUENCES.
Section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)
is amended by adding at the end the following:
``(j) For purposes of this Act, and notwithstanding subsection
(a)(43), the Secretary of Homeland Security may treat any conviction
that did not result in incarceration for more than 1 year as if such
conviction were not a conviction for an aggravated felony. This
discretion may be exercised for humanitarian purposes, to assure family
unity, or when it is otherwise in the public interest.''.
SEC. 106. AGE-OUT PROTECTION FOR CHILDREN.
(a) In General.--Chapter 1 of title IV of the Immigration and
Nationality Act (8 U.S.C. 1101 note) is amended by adding at the end
the following:
``age-out protection for children
``Sec. 408. (a) In General.--In the case of an application
initially to grant a benefit under this Act (other than an application
for naturalization) that otherwise would be granted only after a
determination that the beneficiary of the application is a child (such
as classification as an immediate relative under section
201(b)(2)(A)(i)), if the application is neither approved nor denied (on
procedural or substantive grounds) during the 90-day period beginning
on the date of the filing of the application, the beneficiary shall be
considered to be a child for all purposes related to the receipt of the
benefit if the beneficiary was a child on the last day of such 90-day
period, and the beneficiary shall not otherwise be prejudiced with
respect to such determination by such delay, and shall be considered to
be a child under this Act for all purposes related to such application.
``(b) Termination of Benefit.--Subsection (a) shall remain in
effect until the termination of the 1-year period beginning on the date
on which the application described in such paragraph is approved.''.
(b) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act is amended by inserting after the item relating to
section 407 the following:
``408. Age-out protection for children.''.
TITLE II--EARNED ACCESS TO LEGALIZATION
SEC. 201. ADJUSTMENT OF STATUS ON THE BASIS OF EARNED ACCESS TO
LEGALIZATION.
(a) In General.--Chapter 5 of title II of the Immigration and
Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after
section 245A the following:
``adjustment of status on the basis of earned access to legalization
``Sec. 245B. (a) In General.--The Secretary of Homeland Security
may adjust the status of an alien to that of an alien lawfully admitted
for permanent residence if the alien--
``(1) was physically present in the United States for a
continuous period of not less than 5 years immediately
preceding the date on which this provision was enacted and has
maintained continuous physical presence since then;
``(2) has at all times been a person of good moral
character;
``(3) has never been convicted of a criminal offense in the
United States;
``(4) in the case of an alien who is 18 years of age or
older, but who is not over the age of 65, has successfully
completed a course on reading, writing, and speaking words in
ordinary usage in the English language, unless unable to do so
on account of physical or developmental disability or mental
impairment;
``(5) in the case of an alien 18 years of age or older, has
accepted the values and cultural life of the United States; and
``(6) in the case of an alien 18 years of age or older, has
performed at least 40 hours of community service.
``(b) Treatment of Brief, Casual, and Innocent Absences.--An alien
shall not be considered to have failed to maintain a continuous
presence in the United States for purposes of subsection (a)(1) by
virtue of brief, casual, and innocent absences from the United States.
``(c) Admissible as Immigrant.--
``(1) In general.--The alien shall establish that the alien
is admissible to the United States as immigrant, except as
otherwise provided in paragraph (2).
``(2) Exceptions.--The provisions of paragraphs (5),
(6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and
(9)(C)(i)(I) of section 212(a) shall not apply in the
determination of an alien's admissibility under this section.
``(d) Security and Law Enforcement Clearances.--The alien, if over
15 years of age, shall submit fingerprints in accordance with
procedures established by the Secretary of Homeland Security. Such
fingerprints shall be submitted to relevant Federal agencies to be
checked against existing databases for information relating to
criminal, national security, or other law enforcement actions that
would render the alien ineligible for adjustment of status under this
section. The Secretary of Homeland Security shall provide a process for
challenging the accuracy of matches that result in a finding of
ineligibility for adjustment of status.
``(e) Inapplicability of Numerical Limitations.--When an alien is
granted lawful permanent resident status under this subsection, the
number of immigrant visas authorized to be issued under any provision
of this Act shall not be reduced. The numerical limitations of sections
201 and 202 shall not apply to adjustment of status under this section.
``(f) Termination of Proceedings.--The Secretary of Homeland
Security may terminate removal proceedings without prejudice pending
the outcome of an alien's application for adjustment of status under
this section on the basis of a prima facie showing of eligibility for
relief under this section.''.
(b) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act is amended by inserting after the item relating to
section 245A the following:
``245B. Adjustment of status on the basis of earned access to
legalization.''.
TITLE III--EMPLOYEE PROTECTIONS
SEC. 301. UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES.
Section 274B of the Immigration and Nationality Act (8 U.S.C.
1324b) is amended--
(1) in subsection (a)(5)--
(A) by amending the paragraph heading to read
``Prohibition of intimidation, retaliation, or unlawful
discrimination in employment'';
(B) by moving the text down and to the right 2 ems;
(C) by inserting before such text the following:
``(A) In general.--''; and
(D) by adding at the end the following:
``(B) Federal labor or employment laws.--It is an
unfair employment practice for any employer to directly
or indirectly threaten any individual with removal or
any other adverse consequences pertaining to that
individual's immigration status or employment benefits
for the purpose of intimidating, pressuring, or
coercing any such individual not to exercise any right
protected by state or federal labor or employment law
(including section 7 of the National Labor Relations
Act (29 U.S.C. 157)), or for the purpose of retaliating
against any such individual for having exercised or
having stated an intention to exercise any such right.
``(C) Discrimination based on immigration status.--
It is an unfair employment practice for any employer,
except to the extent specifically authorized or
required by law, to discriminate in any term or
condition of employment against any individual employed
by such employer on the basis of such individual's
immigration status.''; and
(2) in subsection (c)(2), by adding at the end the
following: ``The Special Counsel shall not disclose to the
Secretary of Homeland Security or any other government agency
or employee, and shall not cause to be published in a manner
that discloses to the Secretary of Homeland Security or any
other government agency or employee, any information obtained
by the Special Counsel in any manner concerning the immigration
status of any individual who has filed a charge under this
section, or the identity of any individual or entity that is a
party or witness to a proceeding brought pursuant to such
charge. The Secretary of Homeland Security may not rely, in
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