Sec. 1106. General provisions relating to adjustment of status
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Chapter 5 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1255 et seq.), as amended by section 1105, is further amended by inserting after section 245E the following: Unless otherwise specified, the provisions of this section shall apply to sections 245B, 245C, 245D, 245E, and 245F. Unless otherwise specified, a noncitizen applying for status under section 245B, 245C, 245D, 245E, or 245F shall satisfy the following requirements: The noncitizen shall submit a completed application to the Secretary at such time, in such manner, and containing such information as the Secretary shall require.
A noncitizen who is 18 years of age or older shall pay to the Department of Homeland Security a processing fee in an amount determined by the Secretary. The processing fee referred to in subparagraph
(A)shall be set at a level sufficient to recover the cost of processing the application. The Secretary may— limit the maximum processing fee payable under this paragraph by a family; and for good cause, exempt individual applicants or defined classes of applicants from the requirement to pay fees under this paragraph. Fees collected under this paragraph shall be deposited into the Immigration Examinations Fee Account pursuant to section 286(m). The noncitizen shall be physically present in the United States on the date on which the application is submitted. Except as provided in clause (ii), the noncitizen shall have been continuously physically present in the United States beginning on January 1, 2021, and ending on the date on which the application is approved. A noncitizen who departed temporarily from the United States shall not be considered to have failed to maintain continuous physical presence in the United States during any period of travel that was authorized by the Secretary. A noncitizen who departed temporarily from the United States shall not be considered to have failed to maintain continuous physical presence in the United States if the noncitizen’s absences from the United States are brief, casual, and innocent, whether or not such absences were authorized by the Secretary. For purposes of this clause, an absence of more than 180 days, in the aggregate, during a calendar year shall not be considered brief, unless the Secretary finds that the length of the absence was due to circumstances beyond the noncitizen’s control, including the serious illness of the noncitizen, death or serious illness of a spouse, parent, grandparent, grandchild, sibling, son, or daughter of the noncitizen, or due to international travel restrictions. Issuance of a notice to appear under section 239(a) shall not be considered to interrupt the continuity of a noncitizen’s continuous physical presence in the United States. With respect to a noncitizen who was removed from or who departed the United States on or after January 20, 2017, and who was continuously physically present in the United States for not fewer than 3 years immediately preceding the date on which the noncitizen was removed or departed, the Secretary may waive, for humanitarian purposes, to ensure family unity, or if such a waiver is otherwise in the public interest, the application of— paragraph (3)(A); and in the case of an applicant for lawful prospective immigrant status under section 245B, if the applicant has not reentered the United States unlawfully after January 1, 2021, subsection (c)(3). The Secretary, in consultation with the Secretary of State, shall establish a procedure by which a noncitizen, while outside the United States, may apply for status under section 245B, 245C, 245D, 245E, or 245F, as applicable, if the noncitizen would have been eligible for such status but for the noncitizen's removal or departure. Subject to subparagraph (B), a noncitizen shall be ineligible for status under sections 245B, 245C, 245D, 245E, and 245F if the noncitizen— is inadmissible under paragraph (2), (3), (6)(E), (8), (10)(C), or (10)(E) of section 212(a); has been convicted of a felony offense (excluding any offense under State law for which an essential element in the noncitizen's immigration status); or has been convicted of 3 or more misdemeanor offenses (excluding simple possession of cannabis or cannabis-related paraphernalia, any offense involving cannabis or cannabis-related paraphernalia that is no longer prosecutable in the State in which the conviction was entered, any offense under State law for which an essential element is the noncitizen’s immigration status, any offense involving civil disobedience without violence, and any minor traffic offense) not occurring on the same date, and not arising out of the same act, omission, or scheme of misconduct. For purposes of subparagraph (A), the Secretary may, for humanitarian purposes, family unity, or if otherwise in the public interest— waive inadmissibility under— subparagraphs (A), (C), and
(D)of section 212(a)(2); and paragraphs (6)(E), (8), (10)(C), and (10)(E) of such section; waive ineligibility under subparagraph (A)(ii) (excluding offenses described in section 101(a)(43)(A)) or inadmissibility under subparagraph
(B)of section 212(a)(2) if the noncitizen has not been convicted of any offense during the 10-year period preceding the date on which the noncitizen applies for status under section 245B, 245C, 245D, 245E, or 245F, as applicable; and for purposes of subparagraph (A)(iii), waive consideration of— 1 misdemeanor offense if, during the 5-year period preceding the date on which the noncitizen applies for status under section 245B, 245C, 245D, 245E, or 245F, as applicable, the noncitizen has not been convicted of any offense; or 2 misdemeanor offenses if, during the 10-year period preceding such date, the noncitizen has not been convicted of any offense. In making a determination under subparagraph (B), the Secretary of Homeland Security or the Attorney General shall consider all mitigating and aggravating factors, including— the severity of the underlying circumstances, conduct, or violation; the duration of the noncitizen’s residence in the United States; evidence of rehabilitation, if applicable; and the extent to which the noncitizen’s removal, or the denial of the noncitizen’s application, would adversely affect the noncitizen or the noncitizen’s United States citizen or lawful permanent resident family members. A noncitizen shall be ineligible for status under sections 245B, 245C, 245D, 245E, and 245F if on January 1, 2021, the noncitizen was any of the following: A lawful permanent resident. A noncitizen admitted as a refugee under section 207 or granted asylum under section 208. A noncitizen who, according to the records of the Secretary or the Secretary of State, is in a period of authorized stay in a nonimmigrant status described in section 101(a)(15)(A), other than— a spouse or a child of a noncitizen eligible for status under section 245B, 245C, 245D, 245E, or 245F; a noncitizen considered to be in a nonimmigrant status solely by reason of section 702 of the Consolidated Natural Resources Act of 2008 ( Public Law 110–229 ; 122 Stat. 854) or section 244(f)(4) of this Act; a nonimmigrant described in section 101(a)(15)(H)(ii)(a); and a noncitizen who has engaged in essential critical infrastructure labor or services , as described in the Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID–19 Response (as revised by the Department of Homeland Security) during the period described in subparagraph (B). A noncitizen paroled into the Commonwealth of the Northern Mariana Islands or Guam who did not reside in the Commonwealth or Guam on November 28, 2009. The period described in this subparagraph is the period that— begins on the first day of the public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act ( 42 U.S.C. 247d ) with respect to COVID–19; and ends on the date that is 90 days after the date on which such public health emergency terminates. A noncitizen shall be ineligible for status under sections 245B, 245C, 245D, 245E, and 245F if the noncitizen— departed the United States while subject to an order of exclusion, deportation, removal, or voluntary departure; and was outside the United States on January 1, 2021; or reentered the United States unlawfully after January 1, 2021. The Secretary may not grant a noncitizen status under section 245B, 245C, 245D, 245E, or 245F unless the noncitizen submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for noncitizens who are unable to provide such biometric or biographic data due to a physical impairment. The Secretary shall use biometric and biographic data— to conduct security and law enforcement background checks; and to determine whether there is any criminal, national security, or other factor that would render the noncitizen ineligible for status under section 245B, 245C, 245D, 245E, or 245F, as applicable. A noncitizen may not be granted status under section 245B, 245C, 245D, 245E, or 245F unless security and law enforcement background checks are completed to the satisfaction of the Secretary. A noncitizen’s eligibility for status under section 245B, 245C, 245D, 245E, or 245F shall not preclude the noncitizen from seeking any status under any other provision of law for which the noncitizen may otherwise be eligible. Section 208(d)(6) shall not apply to any noncitizen who submits an application under section 245B, 245C, 245D, 245E, or 245F. Nothing in this section or section 245B, 245C, 245D, 245E, or 245F or in any other law may be construed— to limit the number of noncitizens who may be granted status under sections 245B, 245C, 245D, 245E, and 245F; or to count against any other numerical limitation under this Act. A noncitizen who appears to be prima facie eligible for status under section 245B, 245C, 245D, 245E, or 245F shall be given a reasonable opportunity to apply for such adjustment of status and, if the noncitizen applies within a reasonable period, the noncitizen shall not be removed before— the Secretary has issued a final decision denying relief; a final order of removal has been issued; and the decision of the Secretary is upheld by a court, or the time for initiating judicial review under section 242 has expired, unless the order of removal is based on criminal or national security grounds, in which case removal does not affect the noncitizen’s right to judicial review. The Secretary shall establish a process by which a principal applicant and his or her spouse and children may file a single combined application under section 245B, 245C, 245D, 245E, or 245F, including a petition to classify the spouse and children as the spouse and children of the principal applicant. If the spousal or parental relationship between a noncitizen granted lawful prospective immigrant status or lawful permanent resident status under section 245B, 245C, 245D, 245E, or 245F and the noncitizen’s spouse or child is terminated by death, divorce, or annulment, or the spouse or child has been battered or subjected to extreme cruelty by the noncitizen (regardless of whether the legal relationship terminates), the spouse or child may apply independently for lawful prospective immigrant status or lawful permanent resident status if he or she is otherwise eligible. If the application of a noncitizen for status under section 245B, 245C, 245D, 245E, or 245F is denied, or his or her status is revoked, the spouse or child of such noncitizen shall remain eligible to apply independently for status under the applicable section. The Secretary shall evaluate each application submitted under section 245B, 245C, 245D, 245E, or 245F to determine whether the applicant meets the applicable requirements. If the Secretary determines that a noncitizen meets the requirements of section 245B, 245C, 245D, 245E, or 245F, as applicable, the Secretary shall— notify the noncitizen of such determination; and adjust the status of the noncitizen to that of lawful prospective immigrant or lawful permanent resident, as applicable, effective as of the date of such determination. The Secretary shall issue documentary evidence of lawful prospective immigrant status or lawful permanent resident status, as applicable, to each noncitizen whose application for such status has been approved. Documentary evidence issued under clause
(i)shall— be machine-readable and tamper-resistant; contain a digitized photograph of the noncitizen; during the noncitizen’s authorized period of admission, serve as a valid travel and entry document; and include such other features and information as the Secretary may prescribe. Documentary evidence issued under clause
(i)shall be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B); and If the Secretary determines that the noncitizen does not meet the requirements for the status for which the noncitizen applied, the Secretary shall notify the noncitizen of such determination. On receipt of a request to withdraw an application under section 245B, 245C, 245D, 245E, or 245F, the Secretary shall cease processing of the application and close the case. Withdrawal of such an application shall not prejudice any future application filed by the applicant for any immigration benefit under this Act. A noncitizen’s application for status under section 245B, 245C, 245D, 245E, or 245F may include, as evidence of identity, the following: A passport or national identity document from the noncitizen’s country of origin that includes the noncitizen’s name and the noncitizen’s photograph or fingerprint. The noncitizen’s birth certificate and an identity card that includes the noncitizen’s name and photograph. A school identification card that includes the noncitizen’s name and photograph, and school records showing the noncitizen’s name and that the noncitizen is or was enrolled at the school. A uniformed services identification card issued by the Department of Defense. Any immigration or other document issued by the United States Government bearing the noncitizen’s name and photograph. A State-issued identification card bearing the noncitizen's name and photograph. Any other evidence that the Secretary determines to be credible. Evidence that the noncitizen has been continuously physically present in the United States may include the following: Passport entries, including admission stamps on the noncitizen’s passport. Any document from the Department of Justice or the Department of Homeland Security noting the noncitizen’s date of entry into the United States. Records from any educational institution the noncitizen has attended in the United States. Employment records of the noncitizen that include the employer’s name and contact information. Records of service from the uniformed services. Official records from a religious entity confirming the noncitizen’s participation in a religious ceremony. A birth certificate for a child who was born in the United States. Hospital or medical records showing medical treatment or hospitalization, the name of the medical facility or physician, and the date of the treatment or hospitalization. Automobile license receipts or registration. Deeds, mortgages, or rental agreement contracts. Rent receipts or utility bills bearing the noncitizen’s name or the name of an immediate family member of the noncitizen, and the noncitizen’s address. Tax receipts. Insurance policies. Remittance records, including copies of money order receipts sent in or out of the country. Travel records, including online or hardcopy airplane, bus and train tickets, itineraries, and hotel or hostel receipts. Dated bank transactions. Sworn affidavits from at least two individuals who are not related to the noncitizen who have direct knowledge of the noncitizen’s continuous physical presence in the United States, that contain— the name, address, and telephone number of the affiant; and the nature and duration of the relationship between the affiant and the noncitizen. Any other evidence determined to be credible. The Secretary shall set forth, by regulation, the documents that may be used as evidence that a noncitizen’s application for status under section 245B, 245C, 245D, 245E, or 245F is exempt from an application fee under subsection (b)(2). If the Secretary determines, after publication in the Federal Register and an opportunity for public comment, that any document or class of documents does not reliably establish identity, or that any document or class of documents is frequently being used to obtain relief under this section and is being obtained fraudulently to an unacceptable degree, the Secretary may prohibit or restrict the use of such document or class of documents. The Secretary may deny an application under section 245B, 245C, 245D, 245E, or 245F submitted by a noncitizen who fails to submit requested initial evidence, including requested biometric data, or any requested additional evidence, by the date required by the Secretary. A noncitizen whose application is denied under clause
(i)may, without an additional fee, submit to the Secretary an amended application or supplement the existing application if the amended or supplemented application contains the required information and any fee that was missing from the initial application. Except as provided in clause (i), an application— may not be denied for failure to submit particular evidence; and may only be denied on evidentiary grounds if the evidence submitted is not credible or otherwise fails to establish eligibility. The Secretary may determine— whether evidence is credible; and the weight to be given the evidence. If the Secretary determines that a noncitizen fraudulently obtained status under section 245B, 245C, 245D, 245E, or 245F, the Secretary may revoke such status at any time after— providing appropriate notice to the noncitizen; providing the noncitizen an opportunity to respond; and the exhaustion or waiver of all applicable administrative review procedures under paragraph (6). In determining whether to revoke a noncitizen’s status under subparagraph (A), the Secretary may require the noncitizen— to submit additional evidence; or to appear for an interview. If a noncitizen’s status is revoked under subparagraph (A), any documentation issued by the Secretary to the noncitizen under paragraph (3)(C) shall automatically be rendered invalid for any purpose except for departure from the United States. Administrative review of a determination with respect to an application for status under section 245B, 245C, 245D, 245E, or 245F shall be conducted solely in accordance with this paragraph. The Secretary shall establish or designate an appellate authority to provide for a single level of administrative appellate review of denials of applications or petitions submitted, and revocations of status, under sections 245B, 245C, 245D, 245E, and 245F. A noncitizen in the United States whose application for status under section 245B, 245C, 245D, 245E, or 245F has been denied or whose status under any such section has been revoked may submit to the Secretary not more than 1 appeal of each such decision. A notice of appeal under this paragraph shall be submitted not later than 90 days after the date of service of the denial or revocation, unless a delay beyond the 90-day period is reasonably justifiable. Nothing in this paragraph may be construed to limit the authority of the Secretary to certify appeals for review and final decision. A decision to deny, or revoke approval of, a petition submitted by a noncitizen to classify a spouse or child of the noncitizen as the spouse or child of a noncitizen for purposes of section 245B, 245C, 245D, 245E, or 245F may be appealed under this paragraph. Noncitizens seeking administrative review of a denial, or revocation of approval, of an application for status under section 245B, 245C, 245D, 245E, or 245F shall not be removed from the United States before a final decision is rendered establishing ineligibility for such status. Administrative appellate review under this paragraph shall be de novo and based solely upon— the administrative record established at the time of the determination on the application; and any additional newly discovered or previously unavailable evidence. Judicial review of decisions denying, or revoking approval of, applications or petitions under sections 245B, 245C, 245D, 245E, and 245F shall be governed by section 242. During the period beginning on the date on which a noncitizen applies for status under section 245B, 245C, 245D, 245E, or 245F and ending on the date on which the Secretary makes a final decision on such application— notwithstanding section 212(d)(5)(A), the Secretary shall have the discretion to grant advance parole to the noncitizen; the noncitizen shall not be considered an unauthorized noncitizen (as defined in section 274A(h)(3)). As soon as practicable after receiving an application for status under section 245B, 245C, 245D, 245E, or 245F, the Secretary shall provide the applicant with a document acknowledging receipt of such application. A document issued under subparagraph
(A)shall— serve as interim proof of the noncitizen’s authorization to accept employment in the United States; and be accepted by an employer as evidence of employment authorization under section 274A(b)(1)(C) pending a final decision on the application. An employer who knows that a noncitizen employee is an applicant for status under section 245B, 245C, 245D, 245E, or 245F or intends to apply for any such status, and who continues to employ the noncitizen pending a final decision on the noncitizen employee’s application, shall not be considered to be in violation of section 274A(a)(2) for hiring, employment, or continued employment of the noncitizen. Except as provided in subparagraph (B), no officer or employee of the United States may— use the information provided by a noncitizen pursuant to an application submitted under section 245B, 245C, 245D, 245E, or 245F to initiate removal proceedings against any person identified in the application; make any publication whereby the information provided by any particular individual pursuant to such an application may be identified; or permit any individual other than an officer or employee of the Federal agency to which such an application is submitted to examine the application. Notwithstanding subparagraph (A), the Attorney General or the Secretary shall provide the information provided in an application under section 245B, 245C, 245D, 245E, or 245F, and any other information derived from such information, to— a duly recognized law enforcement entity in connection with an investigation or prosecution of an offense described in paragraph
(2)or
(3)of section 212(a), if such information is requested in writing by such entity; or an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime). Whoever knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $50,000. The Secretary shall require appropriate administrative and physical safeguards to protect against disclosure and uses of information that violate this paragraph. Not less frequently than annually, the Secretary shall conduct an assessment that, for the preceding calendar year— analyzes the effectiveness of the safeguards under subparagraph (D); determines the number of authorized disclosures made; and determines the number of disclosures prohibited by subparagraph
(A)made. The Secretary, in consultation with the Attorney General, shall make available forms and accompanying instructions in the most common languages spoken in the United States, as determined by the Secretary. The Secretary shall develop a plan for providing reasonable accommodation, consistent with applicable law, to applicants for status under sections 245B, 245C, 245D, 245E, and 245F with disabilities (as defined in section 3(1) of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12102(1) )). In this section and sections 245B, 245C, 245D, 245E, and 245F: The term final decision means a decision or an order issued by the Secretary under this section after the period for requesting administrative review under subsection (g)(5) has expired or the challenged decision was affirmed after such administrative review. The term Secretary means the Secretary of Homeland Security. The term uniformed services has the meaning given the term in section 101(a) of title 10, United States Code. . Not later than 1 year after the date of the enactment of this Act, the Secretary shall issue interim final rules, published in the Federal Register, implementing sections 245B, 245D, 245E, 245F, and 245G of the Immigration and Nationality Act, as added by this subtitle. Notwithstanding section 553 of title 5, United States Code, the rules issued under this paragraph 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. Not later than 180 days after the date of publication under subparagraph (B), the Secretary shall finalize the interim rules. Not later than 180 days after the date of the enactment of this Act, the Secretary shall issue a final rule implementing section 245C of the Immigration and Nationality Act, as added by this subtitle. The rules issued under this subsection shall prescribe the evidence required to demonstrate eligibility for status under sections 245B, 245C, 245D, 245E, and 245F of the Immigration and Nationality Act, as added by this subtitle, or otherwise required to apply for status under such sections. The requirements under chapter 35 of title 44, United States Code (commonly known as the Paperwork Reduction Act ), shall not apply to any action to implement this title. The table of contents for the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq.), as amended by section 1105, is further amended by inserting after the item relating to section 245F the following: Sec. 245G. General provisions relating to adjustment of status. .
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- Pub. L. 110-229
- 122 Stat. 854
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cites case law
Sec. 1106
General provisions relating to adjustment of status
Pub. L.Pub. L. 110-229
Stat.122 Stat. 854
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