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HR 3402 the Department of Justice Appropriations Authorization Act

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HR 3402 the Department of Justice Appropriations Authorization Act 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.
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