Assisting Children and Helping them Improve their Educational Value for Employment Act or the ACHIEVE Act - Amends the Immigration and Nationality Act to establish a nonimmigrant W-1 visa for an alien whose status in the United States is on a conditional basis and who:
Establishes a nonimmigrant W-2 visa for an alien whose status in the United States is on a conditional basis and who:
Establishes a nonimmigrant W-3 visa for an alien who:
Sets forth provisions regarding the admission and cancellation of removal of W-visa nonimmigrants.
States that:
Amends the federal criminal code to provide that any person who files a fraudulent application, or makes or uses any related false writing or document, for any benefit under the this Act shall be:
Makes W-visa nonimmigrants eligible for Armed Forces enlistment.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3639 Introduced in Senate (IS)]
112th CONGRESS
2d Session
S. 3639
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 27, 2012
Mrs. Hutchison (for herself, Mr. Kyl, and Mr. McCain) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
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.
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 ``Assisting Children and Helping them
Improve their Educational Value for Employment Act'' or the ``ACHIEVE
Act''.
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--
(1) in subparagraph (T)(iii), by striking the period at the
end and inserting a semicolon;
(2) in subparagraph (U)(iii), by striking ``or'' at the
end;
(3) in subparagraph (V)(ii)(II), by striking the period at
the end and inserting a semicolon; and
(4) by adding at the end the following:
``(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--
``(I) was younger than 14 years of age on
the date on which the alien initially entered
the United States;
``(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;
``(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;
``(IV) has been a person of good moral
character since the date on which the alien
initially entered the United States;
``(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);
``(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);
``(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);
``(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;
``(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--
``(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);
``(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;
``(cc) has earned a bachelor's
degree or an associate's degree from an
institution of higher education; or
``(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;
``(X) has never been under a final
administrative or judicial order of exclusion,
deportation, or removal, unless the alien--
``(aa) remained in the United
States under the color of law after the
order was issued; or
``(bb) received the order before
reaching 16 years of age; and
``(XI)(aa) was younger than 29 years of age
on the date of the enactment of the ACHIEVE
Act; or
``(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;
``(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--
``(I) was a conditional nonimmigrant
described in clause (i) for a period of not
less than 6 years and during such period--
``(aa) has not violated any of the
requirements of clause (i);
``(bb) has not become a public
charge; and
``(cc) has not abandoned the
alien's residence in the United States;
``(II) before or during such period of
conditional nonimmigrant status--
``(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;
``(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; or
``(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; and
``(III)(aa) has an offer of employment in
the United States;
``(bb) is employed in the United States; or
``(cc) is pursuing a graduate degree at an
institution of higher education; or
``(iii) an alien who has shown with clear and
convincing evidence that the alien--
``(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--
``(aa) was in compliance with all
requirements for such status during
such periods;
``(bb) did not become a public
charge; and
``(cc) did not abandon the alien's
residence in the United States; and
``(II) while in such status pursuant to
clause (ii)--
``(aa) was employed in the United
States for a period of 36 months; or
``(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.''.
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:
``(s) W Conditional Nonimmigrant Status.--
``(1) Definitions.--In this subsection:
``(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.
``(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.
``(C) Secretary.--Except as otherwise specifically
provided, the term `Secretary' means the Secretary of
Homeland Security.
``(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.
``(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.
``(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.
``(2) General conditions.--
``(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:
``(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.
``(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.
``(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).
``(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)).
``(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--
``(I) the alien is the bearer of a
valid, unexpired nonimmigrant visa
document referred to in clause (vii);
and
``(II) the alien's absence from the
United States is not for any period
longer than 90 days in duration.
``(vi) Evidence of status.--The Secretary
of State shall issue to each alien granted any
such status a highly tamper-resistant document
that--
``(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;
``(II) contains the alien's
biographic and biometric information;
and
``(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.
``(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.
``(viii) Prohibition on benefits.--An alien
granted such status--
``(I) is not eligible for any
Federal means-tested public welfare
benefits;
``(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.); and
``(III) is not considered to be
lawfully present in the United States
for purposes of--
``(aa) section 36B of the
Internal Revenue Code of 1986;
or
``(bb) section 1402 of the
Patient Protection and
Affordable Care Act (42 U.S.C.
18071).
``(ix) Change of status.--
``(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.
``(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.
``(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.
``(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.
``(C) Exclusive jurisdiction.--
``(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).
``(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.
``(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.
``(3) W-1 conditional nonimmigrants.--
``(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.
``(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.
``(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--
``(i) the date that is 1 year after the
date of the enactment of this subsection; or
``(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.
``(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.
``(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:
``(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.
``(ii) Background checks.--
``(I) Requirement for background
checks.--The Secretary utilizes the
biometric, biographic, and other data
submitted by the alien, as requested by
the Secretary--
``(aa) to conduct security
and law enforcement background
checks of the alien; and
``(bb) to determine if
there is any criminal, national
security, or other factor that
would render the alien
ineligible for such status.
``(II) Timing of checks.--The
security and law enforcement background
checks required under this clause are
completed to the satisfaction of the
Secretary.
``(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.
``(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.
``(v) Citizenship requirement.--Except as
provided in subclause (II), the alien
demonstrates that the alien satisfies the
requirements of section 312(a).
``(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:
``(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.
``(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:
``(aa) An order of removal,
exclusion, or deportation
issued by an Immigration Judge
or the Board of Immigration
Appeals.
``(bb) An I-94 arrival-
departure document.
``(cc) A valid, expired or
unexpired passport reflecting
the date of entry into the
United States.
``(dd) Certified school
records from a recognized
United States Primary or
Secondary School for
kindergarten through grade 12.
``(ee) Certified medical
records from a recognized
hospital or health care
provider in the United States.
``(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.
``(III) Additional forms of
evidence.--The Secretary may--
``(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); and
``(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.
``(vii) Stay of removal.--
``(I) In general.--The Secretary
may not remove any alien who--
``(aa) has a pending
application for W-1
nonimmigrant status; and
``(bb) establishes to the
Secretary, by a preponderance
of the evidence, that the alien
is eligible for such status.
``(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:
``(aa) Certified school
records described in clause
(vi)(II)(dd).
``(bb) Certified medical
records described in clause
(vi)(II)(ee).
``(cc) A sworn affidavit
described in clause
(vi)(II)(ff).
``(F) Calculation of continuous presence under w-1
conditional nonimmigrant status.--
``(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).
``(ii) Treatment of certain breaks in
presence under w-1 status.--
``(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.
``(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.
``(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.
``(G) Period of status.--
``(i) In general.--W-1 conditional
nonimmigrant status shall be valid for a period
of 6 years, subject to termination under
subparagraph (H).
``(ii) Prohibition on extension.--The
Secretary may not renew or extend the 6-year
period referred to in clause (i) for any alien.
``(H) Termination of status.--
``(i) In general.--The Secretary shall
terminate the W-1 conditional nonimmigrant
status of any alien if the Secretary determines
that the alien--
``(I) ceases to meet the
requirements of this section or of
101(a)(15)(W)(i);
``(II) has become a public charge;
or
``(III) has received a dishonorable
discharge from the Armed Forces.
``(ii) Return to previous immigration
status.--Any alien whose W-1 conditional
nonimmigrant status is terminated under clause
(i)--
``(I) shall return to the
immigration status the alien had
immediately before receiving W-1
conditional nonimmigrant status; and
``(II) shall be subject to
immediate removal.
``(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--
``(i) the alien's name and current address;
``(ii) an attestation of the alien's intent
to enlist; and
``(iii) an attestation that the alien meets
the applicable moral, medical, and mental
standards for enlistment.''.
(b) Regulations.--
(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).
(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.
(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.
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:
``(4) W-2 conditional nonimmigrant status.--
``(A) Eligibility.--
``(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.
``(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.
``(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.
``(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--
``(i) not earlier than 1 year before the
applicant's valid W-1 status expires; and
``(ii) not later than the date on which the
applicant's valid W-1 status expires.
``(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.
``(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:
``(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--
``(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);
and
``(II) demonstrated good moral
character.
``(ii) Continuous presence.--The alien has
maintained continuous physical presence in the
United States during such period, as calculated
under subparagraph (F).
``(iii) Disability exception.--
``(I) In general.--The Secretary of
Homeland Security may grant a hardship
waiver to any alien who proves, by
clear and convincing evidence, that--
``(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); and
``(bb) such disability is
directly attributable to the
alien's inability to meet the
requirements under clause
(i)(I).
``(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.
``(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).
``(G) Period of status.--W-2 conditional
nonimmigrant status shall be valid for a period of 4
years, subject to termination under subparagraph (H).
``(H) Termination of status.--
``(i) In general.--The Secretary shall
terminate the W-2 conditional nonimmigrant
status of any alien if the Secretary determines
that the alien--
``(I) ceases to meet the
requirements of this section or of
101(a)(15)(W)(ii);
``(II) has become a public charge;
or
``(III) has received a dishonorable
discharge from the Armed Forces.
``(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.
``(I) Special rule for aliens discharged from the
military.--
``(i) Honorable discharge.--An alien who
has served 4 years in a branch of the Armed
Forces and is honorably discharged from such
service--
``(I) may not be required to apply
for W-2 conditional nonimmigrant status
or W-3 nonimmigrant status; and
``(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.
``(ii) General discharge.--
``(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.
``(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:
``(aa) Terminate the
alien's status under
subparagraph (W) of section
101(a)(15).
``(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.''.
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:
``(5) W-3 nonimmigrant status.--
``(A) Eligibility.--
``(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.
``(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.
``(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.
``(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.
``(D) Surcharge.--
``(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.
``(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.
``(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:
``(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--
``(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);
and
``(II) demonstrated good moral
character.
``(ii) Disability exception.--
``(I) In general.--The Secretary of
Homeland Security may grant a hardship
waiver to any alien who proves, by
clear and convincing evidence, that--
``(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); and
``(bb) such disability is
directly attributable to the
alien's inability to meet the
requirements under clause
(i)(I).
``(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.
``(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.
``(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).
``(v) Payment of federal taxes.--
``(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.
``(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.
``(vi) Continuous presence.--The alien has
maintained continuous physical presence in the
United States during such period, as calculated
under subparagraph (F).
``(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).
``(G) Period of status.--
``(i) In general.--W-3 conditional
nonimmigrant status shall be valid for an
initial period of 5 years, subject to
termination under subparagraph (H).
``(ii) Renewal.--The Secretary may renew
the 4-year period referred to in clause (i) for
an unlimited number of 4-year periods.
``(H) Termination of status.--
``(i) In general.--The Secretary shall
terminate the W-3 nonimmigrant status of any
alien if the Secretary determines that the
alien--
``(I) ceases to meet the
requirements of this section or of
101(a)(15)(W)(iii);
``(II) has become a public charge;
or
``(III) has received a dishonorable
discharge from the Armed Forces.
``(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.
``(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.''.
(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)''.
SEC. 6. PENALTIES FOR FALSE STATEMENTS.
(a) Criminal Penalty.--Chapter 75 of title 18, United States Code,
is amended--
(1) by redesignating section 1547 as section 1548;
(2) by inserting after section 1546 the following:
``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--
``(1) shall be fined under this title, imprisoned not more
than 5 years, or both;
``(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)); and
``(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.''; and
(3) in the chapter analysis, by striking the item relating
to section 1547 and inserting the following:
``1547. Fraud and misuse of the ACHIEVE Act.
``1548. Alternative imprisonment maximum for certain offenses.''.
(b) Definition of Aggravated Felony.--Section 101(a)(43) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended--
(1) in subparagraph (T), by striking ``and'' at the end;
(2) by redesignating subparagraph (U) as subparagraph (V);
and
(3) by inserting after subparagraph (T) the following:
``(U) an offense described in section 1547 of title
18, United States Code; and''.
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:
``(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--
``(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;
``(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; or
``(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.
``(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--
``(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;
or
``(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).
``(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.
``(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.''.
SEC. 8. MILITARY ENLISTMENT.
Section 504(b)(1) of title 10, United States Code, is amended by
adding at the end the following:
``(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))).''.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
Llama 3.2 · runs locally in your browser
Ask anything about this bill. The AI reads the full text to answer.
Enter to send · Shift+Enter for new line