NNNuuummmbbbeeerrrsssUUUSSSAAA

H.R. 3402

The Department of Justice Appropriations Authorization Act, Fiscal Years 2006 through 2009

Introduced by Rep. Sensenbrenner (R‐WI) on July 22, 2005 Six Original Cosponsors

[Note: This document covers only the provisions in Title IX of H.R. 3402, as that is the only Title of the bill that deals directly with immigration. Title IX expands the immigration provisions that were included in the Violence Against Women Act (VAWA) of 1994 and the Victims of Trafficking and Violence Protection Act of 2000.]

Title IX—Protection for Immigrant Victims of Violence

Section 900—Regulations j Requires the Departments of Justice (DoJ), Homeland Security (DHS), and State (DoS) to promulgate regulations to implement this Title within six months of the date of enactment and prohibits the agencies from requiring any additional application or petition from anyone who filed on or before the effective date of publication of the regulations. Subtitle A—Victims of Crime

Section 901—Conditions applicable to U and T visas j Allows the families of victims of trafficking and of certain other crimes to obtain T1 or U2 nonimmigrant visas, along with the victim, without having to first show that the family members’ presence is “necessary to avoid extreme hardship,” the current

1 “T” nonimmigrant visas are for aliens who are victims of “a severe form of trafficking,” are unlawfully present in the United States or at a port of entry, and if 18 years of age or over, are cooperating with the authorities in the investigation and prosecution of the traffickers. 2 “U” nonimmigrant visas are for aliens who have “suffered substantial physical or mental abuse as a result of having been a victim” of certain, mostly sexually motivated, crimes (e.g., rape, domestic violence, forced prostitution, slavery, and female genital mutilation [manslaughter and murder), and who have been, are being, or are likely to be helpful to authorities in the investigation and/or prosecution of the crime. NumbersUSA Education and Research Foundation standard; permits the spouse, children, unmarried siblings under the age of 18, and parents to join T visa holders who are under age 21; and permits spouses and children to join T visa holders who are 21 or older. j Establishes that T and U visas are to be valid for four years (no standard duration is currently set by law, but T visas currently are valid for three years by regulation), and may be extended annually, thereafter, for as long as a law enforcement or judicial authority certifies that the alien’s presence is required for the investigation or prosecution of the crime of which the alien was a victim and if the alien files an application to stay permanently. j Allows any alien, except aliens in transit and alien crewmen, who is physically present in the United States to apply for T or U nonimmigrant status, regardless of whether such alien is present on a nonimmigrant visa subject to a two‐year foreign residence requirement, arrived without a visa under the Visa Waiver Program, or is unlawfully present. j Authorizes state and local governments, in addition to the federal government, to certify the need for a T visa holder to remain in the United States for an investigation or prosecution; and defines “investigation or prosecution” to include: | identification of a person or persons who have committed severe forms of trafficking in persons; | location and apprehension of such persons; | testimony at proceedings against such persons; and | responding to and cooperating with requests for evidence and information. j Authorizes the Secretary of Homeland Security, rather than, or in some cases, in addition to, the Attorney General (AG) to implement the provisions of and exercise discretion under the Violence Against Women Act (VAWA). j Makes the provisions of this section effective upon enactment, except that: | the period of authorized stay for an alien granted a T visa prior to enactment for fewer than four years is to be extended to four years and renewed annually as provided for above; | the changes in the process of certifying the continued need for the presence of a T visa holder are to be retroactive to the original enactment of VAWA‐2000; and | the shifting of authority from the AG to DHS are to be retroactive to the creation of the Department of Homeland Security. Section 902—Hardship waiver for conditional permanent residents j Authorizes the AG to remove the conditional status of an alien who entered as the spouse of a US citizen or permanent resident, but whose marriage has ended and so isn’t otherwise eligible for permanent status, if the alien can show that the termination

NumbersUSA Education and Research Foundation 2 of the marriage was not his/her fault, extreme hardship, or domestic abuse; allows such aliens to amend the grounds for relief listed on their applications for a hardship waiver without having to resubmit the application; prohibits consideration of a waiver application if a final removal order against the applicant is in effect; j Directs that the changes to the application process shall apply to applications for waivers pending or filed on or after April 10, 2003, while the prohibition on consideration following a final removal order applies to applications filed on or after the date of enactment. Section 903—Adjustment to permanent resident status j Provides that the three years is counted from the earlier of the date a law enforcement official grants continued presence under the Trafficking Victims Protection Act of 2000 (TVPA‐2000) or the date the alien was granted a T visa; authorizes DHS to waive or reduce the three‐year physical presence requirement for a T visa holder to adjust to permanent residence if the investigating/prosecuting authority has no objection; permits, but does not require, the relevant law enforcement official to certify that he/she has no objection to the waiver or reduction; authorizes DHS to waive consideration of a disqualification from a finding of good moral character (as required for the adjustment of a T nonimmigrant) if there is a connection between the disqualifying act and the trafficking; requires DHS to include in its annual report on the availability of T visas and adjustment of T nonimmigrants to permanent residence statistics on the number of law enforcement officials trained in the identification and protection of trafficking victims and certification to get them T visas. Subtitle B—VAWA Petitioners

Section 911—Definition of VAWA petitioner j Defines in the INA a VAWA petitioner as an alien who has filed and has not been denied after exhaustion of administrative appeals an application or petition for classification or relief as either a principal or a derivative beneficiary under any of the following: | § 204(a)(1)(A)—clauses (iii), (iv), and (v) [the bill says vii, but there is no such clause] allow battered spouses and children to apply for immediate relative or Family 2A visas; | § 204(a)(1)(B)—clauses (ii) and (iii) allow former spouses of bigamists and abusers to apply for Family 2A visas; | § 216(c)(4)—subparagraphs (C) and (D) [the latter is added by § 934 below] allow spouses and former spouses admitted on conditional status to apply for hardship waivers and have the conditional status removed; | the Cuban Adjustment Act—a Cuban spouse or child who has been abused;

NumbersUSA Education and Research Foundation 3 | the Haitian Refugee Immigration Fairness Act—the spouse, child, son or daughter of an alien amnestied under HRIFA; | the Nicaraguan Adjustment and Central American Relief Act—a Nicaraguan or Cuban who applies for amnesty under NACARA; and | § 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act—an applicant for suspension of deportation under IIRAIRA. Section 912—Self‐petitioning for children j Permits the child of an abusive US citizen or lawful permanent resident parent to self‐ petition for permanent residence if the parent died or otherwise terminated the relationship within the past two years (or within two years after the child turns 18) under §§ 204(a)(1)(A)(iv) and (B)(iii); permits the spouse of an abusive lawful permanent resident who died within the past two years to self‐petition for permanent residence under § 204(a)(1)(B)(ii)(II); and makes these provisions effective upon enactment. j Permits children who would qualify to self‐petition under this section except that the abusive parent died or the relationship was terminated more than two years before enactment to self‐petition if the death or termination occurred on or after October 28, 1998 and the petition is filed within two years of enactment or within two years of the child turning 18. j Allows an alien who self‐petitions as the child of an abusive US citizen, but who turns 21 prior to receiving LPR status, to continue to be treated as an immediate relative or, if the alien marries, as a Family 3rd Preference petitioner; allows an alien who self‐ petitions as the child of an abusive permanent resident, but who turns 21 prior to receiving LPR status, to continue to be treated as a Family 2A petitioner; and applies these provisions to all applications filed on or after the date of enactment of VAWA‐ 2000. j Establishes that the derivative child of an abused spouse or child (under § 204(a)(1)(A)) does not need to file a separate adjustment application from the principal’s application. j Permits an alien who would have qualified to self‐petition as an abused child prior to turning 21 to file such petition anyway, as long as the petition is filed prior to the alien turning 25, and the alien will remain eligible for adjustment as a child, despite the fact that the alien is over 21 or has married, or both; and applies this provision to individuals who turned 21 on or after enactment of VAWA. Section 913—Self‐petitioning parents j Permits the parent of an abusive US citizen son or daughter to self‐petition for immediate relative status if the son or daughter lost or renounced citizenship because of the battering or died within the past two years if the parent is of good moral character,

NumbersUSA Education and Research Foundation 4 is otherwise eligible for immediate relative status, and resides or has resided with the abuser; directs that this provision takes effect upon enactment. Section 914—Consistency in VAWA adjudications j Substitutes “related to battering or extreme cruelty by...” in place of “due to an incident of domestic violence.” Section 915—Relief for aliens with pending petitions or applications j Authorizes DHS, at its discretion, to grant deferred action status to an alien for whom a VAWA petition has been filed, if the petition sets forth a prima facie case for approval, until the petition is approved or denied after exhaustion of administrative appeals; and authorizes DHS, at its discretion, to grant deferred action status to an alien who has filed an application for T or U nonimmigrant status, if the application sets forth a prima facie case for approval, until the application is approved or denied after exhaustion of administrative appeals; provides that the alien may not be removed while in deferred action status. j Prohibits DHS from detaining an alien who has filed a VAWA petition or an application for T or U nonimmigrant status if the only basis for detention is a ground for which there is a waiver or an exception; requires DHS to grant employment authorization to aliens for whom a VAWA petition is approved or whose application for T nonimmigrant status is approved; directs that DHS shall process VAWA petitions without regard to whether a proceeding to remove or deport the beneficiary is brought or pending. j Prohibits DHS from removing an alien who has applied for cancellation of removal as a battered spouse or child or the parent of a battered child, and whose application sets forth a prima facie case for relief, until a final decision on the application is reached and, if denied, until all appeals are exhausted; and directs DHS to process such application without regard to whether a removal proceeding has been brought or is pending. Section 916—Access to VAWA protection regardless of manner of entry j Permits an alien who entered as a K‐visa fiancée of a US citizen, but who was abused or whose child was abused by the intended spouse, to self‐petition as an immediate relative; allows a K visa holder to remain in the United States beyond three months even though the marriage is not concluded, if the fiancée or the child of the fiancée was abused by the citizen who filed the petition for the K visa. j Exempts from the required two years of conditional resident status a K visa holder with an approved VAWA petition who seeks adjustment to permanent residence; and makes eligible for cancellation of removal as a battered alien a K visa holder who is abused by the intended US citizen spouse and who meets the other requirements for cancellation of removal.

NumbersUSA Education and Research Foundation 5 j Requires US citizens filing a petition for a K fiancée to include with the petition information on any criminal convictions for domestic violence, sexual assault, or child abuse; prohibits consular officers from approving a petition until the officer has verified that the petitioner has not previously had petitions approved for more than two aliens and, if a petition has been previously approved, that the approved petition was filed at least two years ago; and authorizes the AG, in his discretion, to waive the above restriction. j Permits a battered spouse or child of an asylee to adjust to LPR status; permits an alien who arrived under the Visa Waiver Program to file a VAWA petition, an application for a T or U visa, or an application for cancellation of removal as a battered alien; and permits a J visa holder who has not met the two‐year foreign residence requirement to file a VAWA petition or an application for a T or U visa. Section 917—Eliminating abusers’ control over applications for adjustment of status j Broadens the exemption for certain battered spouses and children from the requirement that a motion to reopen a removal proceeding be filed within 90 days of the final order of removal to all VAWA petitioners, and permits the motion to be accompanied by an application for adjustment of status, as well as an application for cancellation of removal. j Permits the spouse and/or children of a Nicaraguan or Cuban who was eligible for amnesty under NACARA, but did not apply, to apply for amnesty during the 18‐month period following enactment of this Act; permits the spouse of a Cuban eligible for adjustment under the Cuban Adjustment Act to continue to be treated as such a spouse for two years after the Cuban dies or the marriage is terminated or this Act is enacted, if there is a connection between the termination of the marriage and the abuse; permits the spouse and/or children of a Haitian who was eligible for amnesty under HRIFA, but did not apply, to apply following enactment of this Act; permits the spouse and/or children of a Salvadoran, a Guatemalan, or an Eastern European who would have been eligible for suspension of deportation pursuant to NACARA under pre‐IIRIRA rules can file a motion to reopen removal proceedings and apply for suspension of deportation at any time following enactment of this Act; prohibits the spouse or child of such Salvadoran, Guatemalan or Eastern European from filing a petition on behalf of such abuser. Section 918—Parole for VAWA Petitioners and for Derivatives of Trafficking Victims j Directs DHS to grant parole to: j an approved VAWA petitioner whose abuser was a US citizen spouse, parent, or child, and who is admissible and eligible for an immigrant visa; j an approved VAWA petitioner whose abuser was a permanent resident spouse or parent, who is admissible and who would be eligible for an immigrant visa if one were available, and if the alien’s priority date is at least three years past; and

NumbersUSA Education and Research Foundation 6 j an alien who DoS determines would meet the conditions for approval for a T visa as a family member of the trafficking victim, but who has not applied or has not been approved. Section 919—Exemptions from sanctions for failure to depart voluntarily j Exempts VAWA petitioners seeking T or U visas or cancellation of removal from the penalties for failing to depart following a voluntary departure order if the failure to depart is connected to the abuse or criminal activity that is the basis of their applications. Section 920—Access to naturalization j Allows the spouse or child of an abusive US citizen to naturalize after three years of permanent residence, whether or not the permanent status was obtained on the basis of the abuse. Section 921—Limits on use of information provided by abusers j Bars the AG, DHS, DoS, HHS, and DoL from using information provided by abusers or traffickers to make an adverse determination of admissibility or deportability; expands the restriction to include information furnished by or derived from information provided solely by an abuser or a trafficker; provides that such information may be provided to the Judiciary Committees as long as it omits identifying information. j Prohibits the government from contacting the alleged abuser in cases in which an alien is applying for special immigrant juvenile status. j Charges the Office of Professional Responsibility of DHS with enforcing the above provisions. j Prohibits the initiation of removal proceedings unless the following is certified: | no enforcement action was taken against an alien at such places as domestic violence shelters, rape crisis centers, and courthouses where the alien was appearing in connection with a protection order or child custody case; or | such an enforcement action was taken, but that there was no violation of the provisions above j Subjects anyone who knowingly makes a false certification to disciplinary action and a fine of up to $5,000 per violation. Section 922—Information on rights and resources for K fiancees j Directs DHS to develop materials, including an information pamphlet on legal rights and resources for alien victims of domestic violence; requires the pamphlet to be mailed to K visa applicants with the visa application instruction packet; requires information on any criminal convictions of the US citizen sponsor collected under section 916(c) of this Act to be transmitted to the K visa applicant; and requires consular officers to verbally inform K applicants of all such information during their interviews.

NumbersUSA Education and Research Foundation 7 Section 923—Authorization of Appropriations j Authorizes such sums as may be necessary to adjudicate all VAWA petitions, T and U visa applications, cancellation of removal, adjustment of status and temporary protected status. Subtitle C–Miscellaneous

Section 931—Removing the two‐year custody requirement for abused adopted children j Exempts an abused adopted child from the requirement that he be in the legal custody of and residing with the adoptive parents where the abuser is an adoptive parent or a family member of the parent living in the same household. Section 932—Waiver of inadmissibility for VAWA petitioners j Authorizes DHS to waive a false claim to citizenship by a VAWA petitioner who can show a connection between the claim and the abuse; exempts VAWA petitioners from the public charge ground for inadmissibility. Section 933—Employment authorization j Directs DHS to grant work authorization to an abused alien spouse if the spouse was admitted under the A, E‐3, G, or H visa programs. Section 934—Hardship waiver for conditional permanent residence for intended spouses j Waives the two year conditional resident status for spouses who are abused following the marriage ceremony. Section 935—Cancellation of removal j Permits abused aliens who are removable for failure to register, for document fraud, or for marriage fraud, if there is a connection between the marriage fraud and the abuse, to qualify for cancellation of removal; exempts battered aliens from the annual cap of 4,000 cancellations of removal. Section 936—Motion to reopen j Exempts battered aliens from the limit of one motion to reopen a removal proceeding but requires such aliens to be physically present in the United States at the time of filing; requires DHS to stay the removal of the alien pending final disposition of the motion, including exhaustion of all appeals, if a prima facie case is set forth in the motion. Section 937—Removal proceedings j Establishes that abuse of an alien, or the alien’s child or parent, qualifies as an exceptional circumstance justifying the failure to appear at a removal proceeding.

NumbersUSA Education and Research Foundation 8 Section 938—Parallel relief j Applies pre‐IIRIRA suspension of deportation rules to aliens abused by a US citizen or LPR in cases in which the abused alien would have been the abuser’s spouse except that the citizen or LPR was a bigamist. Section 939—Technical corrections Section 940—Technical corrections

NumbersUSA Education and Research Foundation 9