§ 2305 : RECLASSIFICATION OF SPOUSES AND MINOR CHILDREN OF LAWFUL PERMANENT RESIDENTS AS IMMEDIATE RELATIVES |
IMMEDIATE RELATIVES.— Section 201(b)(2)(8 U.S.C. 1151(b)(2)) is amended to read as follows:
A. Aliens who are immediate relatives.
In this paragraph, the term immediate relative means—
a child, spouse, or parent of a citizen of the United States, except that in the case of such a parent such citizen shall be at least 21 years of age;
a child or spouse of an alien lawfully admitted for permanent residence;
a child or spouse of an alien described in clause (i), who is accompanying or following to join the alien;
a child or spouse of an alien described in clause (ii), who is accompanying or following to join the alien;
an alien admitted under section 211(a)on the basis of a prior issuance of a visa to the alien’s accompanying parent who is an immediate relative; and
an alien born to an alien lawfully admitted for permanent residence during a temporary visit abroad.
If an alien who was the spouse or child of a citizen of the United States or of an alien lawfully admitted for permanent residence and was not legally separated from the citizen or lawful permanent resident at the time of the citizen’s or lawful permanent resident’s death files a petition under section 204(a)(1)(B), the alien spouse (and each child of the alien) shall remain, for purposes of this paragraph, an immediate relative during the period beginning on the date of the citizen’s or permanent resident’s death and ending on the date on which the alien spouse remarries.
An alien who has filed a petition under clause (iii)or (iv) of section 204(a)(1)(A)shall remain, for purposes of this paragraph, an immediate relative if the United States citizen or lawful permanent resident spouse or parent loses United States citizenship on account of the abuse.
ALLOCATION OF IMMIGRANT VISAS.— Section 203(a)(8 U.S.C. 1153(a)) is amended—
in paragraph (1), by striking 23,400, and inserting 20 percent of the worldwide level of family-sponsored immigrants under section 201(c);
by striking paragraph (2) and inserting the following:
UNMARRIED SONS AND UNMARRIED DAUGHTERS OF PERMANENT RESIDENT ALIENS.— Qualified immigrants who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence shall be allocated visas in a number not to exceed 20 percent of the worldwide level of family-sponsored immigrants under section 201(c), plus any visas not required for the class specified in paragraph (1).
in paragraph (3) —
in paragraph (4)—
TERMINATION OF REGISTRATION.— Section 203(g)(8 U.S.C. 1153(g)) is amended to read as follows:
LISTS.—
IN GENERAL.—For purposes of carrying out the orderly administration of this title, the Secretary of State may make reasonable estimates of the anticipated numbers of immigrant visas to be issued during any quarter of any fiscal year within each of the categories under subsections (a), (b), and (c) and may rely upon such estimates in authorizing the issuance of visas.
TERMINATION OF REGISTRATION.—
INFORMATION DISSEMINATION.—Not later than 180 days after the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act, the Secretary of Homeland Security and the Secretary of State shall adopt a plan to broadly disseminate information to the public regarding termination of registration procedures described in subparagraphs (B) and (C), including procedures for notifying the Department of Homeland Security and the Department of State of any change of address on the part of a petitioner or a beneficiary of an immigrant visa petition.
TERMINATION FOR FAILURE TO ADJUST.—The Secretary of Homeland Security shall terminate the registration of any alien who has evidenced an intention to acquire lawful permanent residence under section 245and who fails to apply to adjust status within 1 year following notification to the alien of the availability of an immigrant visa.
TERMINATION FOR FAILURE TO APPLY.—The Secretary of State shall terminate the registration of any alien not described in subparagraph (B) who fails to apply for an immigrant visa within 1 year following notification to the alien of the availability of such visa.
REINSTATEMENT.—The registration of any alien that was terminated under paragraph (2) shall be reinstated if, within 2 years following the date of notification of the availability of such visa, the alien demonstrates that such failure to apply was due to good cause
TECHNICAL AND CONFORMING AMENDMENTS.—
DEFINITIONS.— Section 101(a)(15)(K)(ii)(8 U.S.C. 1101(a)(15)(K)(ii)) is amended by striking section 201(b)(2)(A)(i) and inserting section 201(b)(2)(other than clause (v)or (vi) of subparagraph (B)).
PER COUNTRY LEVEL.— Section 202(a)(1)(A)(8 U.S.C. 1152(a)(1)(A)) is amended by striking section 201(b)(2)(A)(i) and inserting
section
RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE IMMEDIATE RELATIVES.— Section 201(f)(8 U.S.C. 1151(f)) is amended—
as paragraphs (2) and (3), respectively; and
in paragraph (3), as redesignated by subparagraph (C), by striking through (3) and inserting and (2).
NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE.— Section 202(a)(4)(8 U.S.C. 1152) is amended—
by striking subparagraphs (A) and (B);
by redesignating subparagraphs (C) and (D) as subparagraphs (A) and (B), respectively; and
in subparagraph (A), as redesignated by clause (ii), by striking section 203(a)(2)(B) and inserting section 203(a)(2); and
ALLOCATION OF IMMIGRANT VISAS.— Section 203(h)(8 U.S.C. 1153(h)) is amended—
in paragraph (1)—
in the matter preceding subparagraph (A), by striking subsections (a)(2)(A) and (d) and inserting subsection (d);
in subparagraph (A), by striking becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), and inserting became available for the alien’s parent,; and
in subparagraph (B), by striking applicable;
by amending paragraph (2) to read as follows:(2) PETITIONS DESCRIBED.—The petition described in this paragraph is a petition filed under section 204for classification of the alien’s parent under subsection (a), (b), or (c).; and
by amending paragraph (3) to read as follows:
RETENTION OF PRIORITY DATE.—
PETITIONS FILED FOR CHILDREN.— For a petition originally filed to classify a child under subsection (d), if the age of the alien is determined under paragraph (1) to be 21 years of age or older on the date that a visa number becomes available to the alien’s parent who was the principal beneficiary of the petition, then, upon the parent’s admission to lawful permanent residence in the United States, the petition shall automatically be converted to a petition filed by the parent for classification of the alien under subsection (a)(2) and the petition shall retain the priority date established by the original petition.
FAMILY AND EMPLOYMENT-BASED PETITIONS.—The priority date for any family or employment-based petition shall be the date of filing of the petition with the Secretary of Homeland Security (or the Secretary of State, if applicable), unless the filing of the petition was preceded by the filing of a labor certification with the Secretary of Labor, in which case that date shall constitute the priority date. The beneficiary of any petition shall retain his or her earliest priority date based on any petition filed on his or her behalf that was approvable when filed, regardless of the category of subsequent petitions.
PROCEDURE FOR GRANTING IMMIGRANT STATUS.—
PETITIONING PROCEDURE.—Section 204(8 U.S.C. 1154) is amended—
by striking subsection (a) and inserting the following:
PETITIONING PROCEDURE.—
IN GENERAL.—
Except as provided in subparagraph (H), any citizen of the United States or alien lawfully admitted for permanent residence claiming that an alien is entitled to classification by reason of a relationship described in subparagraph (A) or (B) of section 203(a)(1) or to an immediate relative status under section 201(b)(2)(A) may file a petition with the Secretary of Homeland Security for such classification.
An alien spouse or alien child described in section 201(b)(2)(C) may file a petition with the Secretary under this paragraph for classification of the alien (and the alien’s children) under such section.
i. An alien who is described in clause (ii) may file a petition with the Secretary under this subparagraph for classification of the alien (and any child of the alien) if the alien demonstrates to the Secretary that —
the marriage or the intent to marry the citizen of the United States or lawful permanent resident was entered into in good faith by the alien; and"
during the marriage or relationship intended by the alien to be legally a marriage, the alien or a child of the alien has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse.
For purposes of clause (i), an alien described in this clause is an alien —
i. who is the spouse of a citizen of the United States or a lawful permanent resident;
who believed that he or she had married a citizen of the United States or lawful permanent resident and with whom a marriage ceremony was actually performed and who otherwise meets any applicable requirements under this Act to establish the existence of and bona fides of a marriage, but whose marriage is not legitimate solely because of the bigamy of such citizen of the United States or lawful permanent resident; or
who was a bona fide spouse of a citizen of the United States or a lawful permanent resident within the past 2 years and
whose spouse died within the past 2 years;
whose spouse renounced citizenship status or renounced or lost status as a lawful permanent resident within the past 2 years related to an incident of domestic violence; or
who demonstrates a connection between the legal termination of the marriage within the past 2 years and battering or extreme cruelty by the spouse who is a citizen of the United States or a lawful permanent resident spouse;
who is a person of good moral character;
who is eligible to be classified as an immediate relative under section 201(b)(2)(A) or who would have been so classified but for the bigamy of the citizen of the United States that the alien intended to marry; and
who has resided with the alien’s spouse or intended spouse.
An alien who is the child of a citizen or lawful permanent resident of the United States, or who was a child of a United States citizen or lawful permanent resident parent who within the past 2 years lost or renounced citizenship status related to an incident of domestic violence, and who is a person of good moral character, who is eligible to be classified as an immediate relative under section 201(b)(2)(A), and who resides, or has resided in the past, with the citizen or lawful permanent resident parent may file a petition with the Secretary of Homeland Security under this paragraph for classification of the alien (and any child of the alien) under such section if the alien demonstrates to the Secretary that the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien’s citizen or lawful permanent resident parent. For purposes of this subparagraph, residence includes any period of visitation.
An alien who —
is the spouse, intended spouse, or child living abroad of a citizen or lawful permanent resident who
is eligible to file a petition under subparagraph (C) or (D),
For the purposes of any petition filed under subparagraph (C) or (D), the denaturalization, loss or renunciation of citizenship or lawful permanent resident status, death of the abuser, divorce, or changes to the abuser’s citizenship or lawful permanent resident status after filing of the petition shall not adversely affect the approval of the petition, and for approved petitions shall not preclude the classification of the eligible self-petitioning spouse or child as an immediate relative or affect the alien’s ability to adjust status under subsections (a) and (c) of section 245 or obtain status as a lawful permanent resident based on the approved self-petition under such clauses.
An alien may file a petition with the Secretary of Homeland Security under this paragraph for classification of the alien under section 201(b)(2)(A) if the alien
is the parent of a citizen of the United States or was a parent of a citizen of the United States who, within the past 2 years, lost or renounced citizenship status related to an incident of domestic violence or died;
is a person of good moral character;
is eligible to be classified as an immediate relative under section 201(b)(2)(A);
resides, or has resided, with the citizen daughter or son; and
demonstrates that the alien has been battered or subject to extreme cruelty by the citizen daughter or son.
i. Subparagraph (A) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in subparagraph (A) is filed.
For purposes of clause (i), the term specified offense against a minor has the meaning given such term in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911).
DETERMINATION OF GOOD MORAL CHARACTER. — Notwithstanding section 101(f), an act or conviction that is waivable with respect to the petitioner for purposes of a determination of the petitioner’s admissibility under section 212(a) or deportability under section 237(a) shall not bar the Secretary of Homeland Security from finding the petitioner to be of good moral character under subparagraph (C) or (D) of paragraph (1), if the Secretary finds that the act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty.
PREFERENCE STATUS.
i. Any child who attains 21 years of age who has filed a petition under paragraph (1)(D) that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a petitioner for preference status under paragraph (1), (2), or (3) of section 203(a), whichever paragraph is applicable, with the same priority date assigned to the self-petition filed under paragraph (1)(D). No new petition shall be required to be filed.
Any individual described in clause (i) is eligible for deferred action and work authorization.
Any derivative child who attains 21 years of age who is included in a petition described in subparagraph (B) that was filed or approved before the date on which the child attained 21 years of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a VAWA self-petitioner with the same priority date as that assigned to the petitioner in any petition described in subparagraph (B). No new petition shall be required to be filed.
Any individual described in clause (iii) and any derivative child of a petitioner described in subparagraph (B) is eligible for deferred action and work authorization.
The petition referred to in subparagraph (A)(iii) is a petition filed by an alien under subparagraph (C) or (D) of paragraph (1) in which the child is included as a derivative beneficiary.
Nothing in the amendments made by the Child Status Protection Act (Public Law 107–208; 116 Stat. 927) shall be construed to limit or deny any right or benefit provided under this paragraph.
Any alien who benefits from this paragraph may adjust status in accordance with subsections (a) and (c) of section 245 as an alien having an approved petition for classification under subparagraph (C) or (D) of paragraph (1).
For purposes of this paragraph, an individual who is not less than 21 years of age, who qualified to file a petition under paragraph (1)(D) as of the minute before the date on which the individual attained 21 years of age, and who did not file such a petition before such day, shall be treated as having filed a petition under such paragraph as of such day if a petition is filed for the status described in such paragraph before the individual attains 25 years of age and the individual shows that the abuse was at least 1 central reason for the filing delay. Subparagraphs (A) through (D) shall apply to an individual described in this subparagraph in the same manner as an individual filing a petition under paragraph (1)(D).
CLASSIFICATION AS ALIEN WITH EXTRAORDINARY ABILITY. — Any alien desiring to be classified under subparagraph (I), (J), (K), (L), or (M) of section 201(b)(1) or section 203(b)(1)(A), or any person on behalf of such an alien, may file a petition with the Secretary of Homeland Security for such classification.
CLASSIFICATION AS EMPLOYMENT-BASED IMMIGRANT. — Any employer desiring and intending to employ within the United States an alien entitled to classification under paragraph (1)(B), (1)(C), (2), or (3) of section 203(b) may file a petition with the Secretary of Homeland Security for such classification.
CLASSIFICATION AS SPECIAL IMMIGRANT. —
Any alien (other than a special immigrant under section 101(a)(27)(D)) desiring to be classified under section 203(b)(4), or any person on behalf of such an alien, may file a petition with the Secretary of Homeland Security for such classification.
Aliens claiming status as a special immigrant under section 101(a)(27)(D) may file a petition only with the Secretary of State and only after notification by the Secretary that such status has been recommended and approved pursuant to such section.
CLASSIFICATION AS IMMIGRANT INVESTOR. — Any alien desiring to be classified under paragraph (5) or (6) of section 203(b) may file a petition with the Secretary of Homeland Security for such classification.
DIVERSITY VISA.—
Any alien desiring to be provided an immigrant visa under section 203(c) may file a petition at the place and time determined by the Secretary of State by regulation. Only 1 such petition may be filed by an alien with respect to any petitioning period established. If more than 1 petition is submitted all such petitions submitted for such period by the alien shall be voided.
i. The Secretary of State shall designate a period for the filing of petitions with respect to visas which may be issued under section 203(c) for the fiscal year beginning after the end of the period.
Aliens who qualify, through random selection, for a visa under section 203(c) shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected.
The Secretary of State shall prescribe such regulations as may be necessary to carry out this subparagraph.
A petition under this paragraph shall be in such form as the Secretary of State may by regulation prescribe and shall contain such information and be supported by such documentary evidence as the Secretary of State may require.
Each petition to compete for consideration for a visa under section 203(c) shall be accompanied by a fee equal to $30. All amounts collected under this subparagraph shall be deposited into the Treasury as miscellaneous receipts.
CONSIDERATION OF CREDIBLE EVIDENCE. — In acting on petitions filed under subparagraph (C) or (D) of paragraph (1), or in making determinations under paragraphs (2) and (3), the Secretary of Homeland Security shall consider any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Secretary.
[Leahy3]WORK AUTHORIZATION.—
(A)
Upon the approval of a petition as a VAWA self-petitioner, the alien—Notwithstanding any provision of this Act restricting eligibility for employment in the United States, the Secretary of Homeland Security shall grant employment authorization to an alien who has filed an application for status as a VAWA self-petitioner on the date that is the earlier of—
LIMITATION.—Notwithstanding paragraphs (1) through (10), an individual who was a VAWA petitioner or who had the status of a nonimmigrant under subparagraph (T) or (U) of section 101(a)(15) may not file a petition for classification under this section or section 214 to classify any person who committed the battery or extreme cruelty or trafficking against the individual (or the individual’s child), which established the individual (or individual’s child) eligibility as a VAWA petitioner or for such nonimmigrant status.;
CONFORMING AMENDMENTS. — The Act (8 U.S.C. 1101 et seq.) is amended
in section 101(a)
in paragraph (15)(K), by striking 204(a)(1)(A)(viii)(I) each place such term appears and inserting 204(a)(1)(H)(i);
in paragraph (50), by striking 204(a)(1)(A)(iii)(II)(aa)(BB), 204(a)(1)(B)(ii)(II)(aa)(BB), and inserting 204(a)(1)(C)(ii)(I)(bb) or; and
in paragraph (51)
in subparagraph (A), by striking 204(a)(1)(A) and inserting 204(a)(1);
by striking subparagraph (B); and
by redesignating subparagraphs (C), (D), (E), (F), and (G) as subparagraphs (B), (C), (D), (E), and (F), respectively;
in section 106(a), by striking 204(a)(1)(A)(iii) and inserting 204(a)(1)(C);
in section 212(a)(4)(C)(i)
in section 216(c)(4)(D), by striking 204(a)(1)(A)(iii)(II)(aa)(BB) and inserting 204(a)(1)(C)(ii)(I)(bb); and
in section 240(c)(7)(C)(iv)(I), by striking clause (iii) or (iv) of section 204(a)(1)(A), clause (ii) or (iii) of section 204(a)(1)(B), and inserting subparagraph (C) or (D) of section 204(a)(1),.
EXCLUDABLE ALIENS.— Section 212(d)(12)(B)(8 U.S.C. 1182(d)(12)(B)) is amended by striking section 201(b)(2)(A) and inserting section 201(b)(2)(other than subparagraph (B)(vi)).
ADMISSION OF NONIMMIGRANTS.— Section 214(r)(3)(A)(8 U.S.C. 1184(r)(3)(A)) is amended by striking section 201(b)(2)(A)(i). and inserting section 201(b)(2)(other than clause (v)or (vi) of subparagraph (B))..
REFUGEE CRISIS IN IRAQ ACT OF 2007.— Section 1243(a)(4) of the Refugee Crisis in Iraq Act of 2007 (8 U.S.C. 1157 note) is amended by striking section 201(b)(2)(A)(i) and inserting section 201(b)(2)(other than clause (v) or (vi) of subparagraph (B)).
PROCESSING OF VISA APPLICATIONS.— Section 233 of the Department of State Authorization Act, Fiscal Year 2003 (8 U.S.C. 1201 note) is amended by striking section 201(b)(2)(A)(i) and inserting section 201(b)(2)(other than clause (v) or (vi) of subparagraph (B)).
ADJUSTMENT OF STATUS.— Section 245(a)(8 U.S.C. 1255(a)) is amended to read as follows:
1. The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General or the Secretary of Homeland Security, in the Attorney General’s or the Secretary’s discretion and under such regulations as the Attorney General or Secretary may prescribe, to that of an alien lawfully admitted for permanent residence (regardless of whether the alien has already been admitted for permanent residence) if—
the alien makes an application for such adjustment;
the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
subject to paragraph (2), an immigrant visa is immediately available to the alien at the time the alien’s application is filed.
A. An application that is based on a petition approved or approvable under subparagraph (A)or (B) of section 204(a)(1)may be filed without regard to the limitation set forth in paragraph (1)(C).
An application for adjustment filed for an alien under this paragraph may not be approved until such time as an immigrant visa becomes available for the alien.
EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act.