[House Report 112-141]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-141
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
TO AMEND THE IMMIGRATION AND NATIONALITY ACT TO TOLL, DURING ACTIVE-
DUTY SERVICE ABROAD IN THE ARMED FORCES, THE PERIODS OF TIME TO FILE A
PETITION AND APPEAR FOR AN INTERVIEW TO REMOVE THE CONDITIONAL BASIS
FOR PERMANENT RESIDENT STATUS, AND FOR OTHER PURPOSES
_______
July 8, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following
R E P O R T
[To accompany H.R. 398]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 398) to amend the Immigration and Nationality Act to
toll, during active-duty service abroad in the Armed Forces,
the periods of time to file a petition and appear for an
interview to remove the conditional basis for permanent
resident status, and for other purposes, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 3
New Budget Authority and Tax Expenditures........................ 3
Congressional Budget Office Cost Estimate........................ 3
Performance Goals and Objectives................................. 4
Advisory on Earmarks............................................. 4
Section-by-Section Analysis...................................... 4
Changes in Existing Law Made by the Bill, as Reported............ 5
Purpose and Summary
H.R. 398 tolls the periods during which alien spouses who
have conditional permanent residence and their U.S. citizen or
permanent resident spouses must petition for the removal of the
conditional status and must attend an interview with the
Department of Homeland Security during any period of time in
which either spouse is a member of the Armed Forces of the
United States and serving abroad in active-duty status.
Background and Need for the Legislation
A U.S. citizen can sponsor an alien spouse for permanent
residence with no numerical limitation. A permanent resident
can sponsor an alien spouse for permanent residence, but a
yearly quota exists. In both cases, the alien spouse becomes a
conditional permanent resident if the marriage was entered into
less than 24 months before the date the alien obtains permanent
resident status by virtue of such marriage.\1\
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\1\See section 216(a)(1) of the Immigration and Nationality Act.
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After two years, the alien spouse and the U.S. citizen or
permanent resident spouse must jointly file a petition with the
Department of Homeland Security (``DHS'') for the removal of
the conditional status.\2\ If the petition is successful, the
alien spouse becomes a permanent resident. The petition must be
filed during the 90-day period before the second anniversary of
the spouse's becoming a conditional permanent resident unless
the alien establishes to the satisfaction of DHS good cause and
extenuating circumstances for failure to file on time.\3\ Upon
the filing of the petition, DHS will interview the spouses to
ascertain whether the marriage was entered into in accordance
with the laws of the place where it took place, was not
judicially annulled or terminated, was not entered into for the
purpose of procuring an alien's admission as an immigrant, and
whether any improper fee or other consideration was given for
the filing of an immigrant or certain nonimmigrant
petitions.\4\ The interview must be conducted within 90 days of
the submission of the petition unless DHS waives the deadline
for the interview or the requirement for the interview.\5\
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\2\See section 216(c) of the INA.
\3\See section 216(d)(2) of the INA.
\4\See section 216(d) of the INA.
\5\See section 216(d)(3) of the INA.
---------------------------------------------------------------------------
What happens in circumstances in which the spouse with
conditional permanent residence or the U.S. citizen or
permanent resident spouse is serving oversees in active duty
status with the Armed Forces? It can lead to clear and
unnecessary logistical difficulties for the military to have to
facilitate a member of the Armed Forces deployed overseas being
able to file a petition and travel to the U.S. for a personal
interview with DHS, especially when the spouse is serving in a
combat zone. It can of course also hinder the spouse's ability
to most ably carry out their military duties. While DHS can
choose to delay this process in appropriate circumstances, a
blanket tolling of the time periods while a spouse is serving
abroad is appropriate.
H.R. 398 tolls the two time periods during any period of
time in which one or both spouses are members of the Armed
Forces of the United States and serving abroad in active-duty
status. The spouses do retain the right to be able to file a
petition within the normal time period at their choosing and
DHS retains the right to waive the interview requirement in
appropriate circumstances.
Hearings
The Committee on the Judiciary held no hearings on H.R.
398.
Committee Consideration
On January 26, 2011, the Committee met in open session and
ordered the bill H.R. 398 favorably reported without amendment,
by a voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 398.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 398, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 2, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 398, a bill to
amend the Immigration and Nationality Act to toll, during
active-duty service abroad in the Armed Forces, the periods of
time to file a petition and appear for an interview to remove
the conditional basis for permanent resident status, and for
other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 398--A bill to amend the Immigration and Nationality Act to toll,
during active-duty service abroad in the Armed Forces, the
periods of time to file a petition and appear for an interview
to remove the conditional basis for permanent resident status,
and for other purposes
H.R. 398 would extend the period of time available for
certain members of the U.S. Armed Forces and their spouses to
complete requirements to gain permanent U.S. residence. This
legislation would affect a small number of people, and CBO
estimates that it would have no significant effect on the
Federal budget. Because the bill could affect direct spending
for visa and immigration matters and increase the cost of
Federal assistance programs, pay-as-you-go procedures apply;
however, we estimate that those costs would be insignificant.
H.R. 398 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
398 tolls the periods during which alien spouses who have
conditional permanent residence and their U.S. citizen or
permanent resident spouses must petition for the removal of the
conditional status and must attend an interview with DHS during
any period in which either spouse is a member of the Armed
Forces of the United States and serving abroad in active-duty
status.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 398 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Tolling Periods of Time to File Petition and Have Interview
for Removal of Condition
Subsection (a) of section 1 of the bill modifies section
216 of the Immigration and Nationality Act to provide that the
90-day period for filing a petition to remove the conditional
permanent resident status of an alien spouse of a U.S. citizen
or permanent resident shall be tolled during any period of time
in which the alien spouse or petitioning spouse is a member of
the Armed Forces of the United States and serving abroad in an
active duty status in the Armed Forces, except that, at the
option of the petitioners, the petition may be filed during
such active-duty service at any time after the commencement of
such period.
Subsection (a) also provides that the 90-day period for the
personal interview with DHS shall be tolled during any period
of time in which the alien spouse or petitioning spouse is a
member of the Armed Forces of the United States and serving
abroad in an active-duty status in the Armed Forces, except
that this shall not be construed as to prohibit the Secretary
of Homeland Security from waiving the requirement for an
interview pursuant to the Secretary's authority.
Subsection (b) of section 1 contains conforming amendments.
Section 2. Compliance with PAYGO
Section 2 of the bill provides that the budgetary effects
of the bill, for the purpose of complying with the Statutory
Pay-As-You-Go Act of 2010, shall be determined by reference to
the latest statement titled ``Budgetary Effects of PAYGO
Legislation'' for the bill, submitted for printing in the
Congressional Record by the Chairman of the Committee on the
Budget of the House of Representatives provided that such
statement has been submitted prior to the vote on passage.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN SPOUSES AND
SONS AND DAUGHTERS
Sec. 216. (a) In General.--
(1) Conditional basis for status.--Notwithstanding
any other provision of this Act, an alien spouse (as
defined in subsection [(g)(1))] (h)(1)) and an alien
son or daughter (as defined in subsection [(g)(2))]
(h)(2)) shall be considered, at the time of obtaining
the status of an alien lawfully admitted for permanent
residence, to have obtained such status on a
conditional basis subject to the provisions of this
section.
(2) Notice of requirements.--
(A) At time of obtaining permanent
residence.--At the time an alien spouse or
alien son or daughter obtains permanent
resident status on a conditional basis under
paragraph (1), the [Attorney General] Secretary
of Homeland Security shall provide for notice
to such a spouse, son, or daughter respecting
the provisions of this section and the
requirements of subsection (c)(1) to have the
conditional basis of such status removed.
(B) At time of required petition.--In
addition, the [Attorney General] Secretary of
Homeland Security shall attempt to provide
notice to such a spouse, son, or daughter, at
or about the beginning of the 90-day period
described in subsection (d)(2)(A), of the
requirements of subsections (c)(1).
(C) Effect of failure to provide notice.--The
failure of the [Attorney General] Secretary of
Homeland Security to provide a notice under
this paragraph shall not affect the enforcement
of the provisions of this section with respect
to such a spouse, son, or daughter.
(b) Termination of Status if Finding that Qualifying Marriage
Improper.--
(1) In general.--In the case of an alien with
permanent resident status on a conditional basis under
subsection (a), if the [Attorney General] Secretary of
Homeland Security determines, before the second
anniversary of the alien's obtaining the status of
lawful admission for permanent residence, that--
(A) * * *
* * * * * * *
the [Attorney General] Secretary of Homeland Security
shall so notify the parties involved and, subject to
paragraph (2), shall terminate the permanent resident
status of the alien (or aliens) involved as of the date
of the determination.
(2) Hearing in removal proceeding.--Any alien whose
permanent resident status is terminated under paragraph
(1) may request a review of such determination in a
proceeding to remove the alien. In such proceeding, the
burden of proof shall be on the [Attorney General]
Secretary of Homeland Security to establish, by a
preponderance of the evidence, that a condition
described in paragraph (1) is met.
(c) Requirements of Timely Petition and Interview for Removal
of Condition.--
(1) In general.--In order for the conditional basis
established under subsection (a) for an alien spouse or
an alien son or daughter to be removed--
(A) the alien spouse and the petitioning
spouse (if not deceased) jointly must submit to
the [Attorney General] Secretary of Homeland
Security, during the period described in
subsection (d)(2), a petition which requests
the removal of such conditional basis and which
states, under penalty of perjury, the facts and
information described in subsection (d)(1), and
(B) in accordance with subsection (d)(3), the
alien spouse and the petitioning spouse (if not
deceased) must appear for a personal interview
before an officer or employee of the [Service]
Department of Homeland Security respecting the
facts and information described in subsection
(d)(1).
(2) Termination of permanent resident status for
failure to file petition or have personal interview.--
(A) In general.--In the case of an alien with
permanent resident status on a conditional
basis under subsection (a), if--
(i) * * *
* * * * * * *
the [Attorney General] Secretary of Homeland
Security shall terminate the permanent resident
status of the alien as of the second
anniversary of the alien's lawful admission for
permanent residence.
* * * * * * *
(3) Determination after petition and interview.--
(A) In general.--If--
(i) * * *
* * * * * * *
the [Attorney General] Secretary of Homeland
Security shall make a determination, within 90
days of the date of the interview, as to
whether the facts and information described in
subsection (d)(1) and alleged in the petition
are true with respect to the qualifying
marriage.
(B) Removal of conditional basis if favorable
determination.--If the [Attorney General]
Secretary of Homeland Security determines that
such facts and information are true, the
[Attorney General] Secretary of Homeland
Security shall so notify the parties involved
and shall remove the conditional basis of the
parties effective as of the second anniversary
of the alien's obtaining the status of lawful
admission for permanent residence.
(C) Termination if adverse determination.--If
the [Attorney General] Secretary of Homeland
Security determines that such facts and
information are not true, the [Attorney
General] Secretary of Homeland Security shall
so notify the parties involved and, subject to
subparagraph (D), shall terminate the permanent
resident status of an alien spouse or an alien
son or daughter as of the date of the deter-
mination.
(D) Hearing in removal proceeding.--Any alien
whose permanent resident status is terminated
under subparagraph (C) may request a review of
such determination in a proceeding to remove
the alien. In such proceeding, the burden of
proof shall be on the [Attorney General]
Secretary of Homeland Security to establish, by
a preponderance of the evidence, that the facts
and information described in subsection (d)(1)
and alleged in the petition are not true with
respect to the qualifying marriage.
(4) Hardship waiver.--The [Attorney General]
Secretary of Homeland Security, in the Attorney
General's discretion, may remove the conditional basis
of the permanent resident status for an alien who fails
to meet the requirements of paragraph (1) if the alien
demonstrates that--
(A) * * *
* * * * * * *
In determining extreme hardship, the [Attorney General]
Secretary of Homeland Security shall consider
circumstances occurring only during the period that the
alien was admitted for permanent residence on a
conditional basis. In acting on applications under this
paragraph, the [Attorney General] Secretary of Homeland
Security shall consider any credible evidence relevant
to the application. The determination of what evidence
is credible and the weight to be given that evidence
shall be within the sole discretion of the [Attorney
General] Secretary of Homeland Security.The [Attorney
General] Secretary of Homeland Security shall, by
regulation, establish measures to protect the
confidentiality of information concerning any abused
alien spouse or child, including information regarding
the whereabouts of such spouse or child.
(d) Details of Petition and Interview.--
(1) * * *
(2) Period for filing petition.--
(A) * * *
(B) Date petitions for good cause.--Such a
petition may be considered if filed after such
date, but only if the alien establishes to the
satisfaction of the [Attorney General]
Secretary of Homeland Security good cause and
extenuating circumstances for failure to file
the petition during the period described in
subparagraph (A).
(C) Filing of petitions during removal.--In
the case of an alien who is the subject of
removal hearings as a result of failure to file
a petition on a timely basis in accordance with
subparagraph (A), the [Attorney General]
Secretary of Homeland Security may stay such
removal proceedings against an alien pending
the filing of the petition under subparagraph
(B).
(3) Personal interview.--The interview under
subsection (c)(1)(B) shall be conducted within 90 days
after the date of submitting a petition under
subsection (c)(1)(A) and at a local office of the
[Service] Department of Homeland Security, designated
by the [Attorney General] Secretary of Homeland
Security, which is convenient to the parties involved.
The [Attorney General] Secretary of Homeland Security,
in the [Attorney General's] Secretary's discretion, may
waive the deadline for such an interview or the
requirement for such an interview in such cases as may
be appropriate.
* * * * * * *
(g) Service in Armed Forces.--
(1) Filing petition.--The 90-day period described in
subsection (d)(2)(A) shall be tolled during any period
of time in which the alien spouse or petitioning spouse
is a member of the Armed Forces of the United States
and serving abroad in an active-duty status in the
Armed Forces, except that, at the option of the
petitioners, the petition may be filed during such
active-duty service at any time after the commencement
of such 90-day period.
(2) Personal interview.--The 90-day period described
in the first sentence of subsection (d)(3) shall be
tolled during any period of time in which the alien
spouse or petitioning spouse is a member of the Armed
Forces of the United States and serving abroad in an
active-duty status in the Armed Forces, except that
nothing in this paragraph shall be construed to
prohibit the Secretary of Homeland Security from
waiving the requirement for an interview under
subsection (c)(1)(B) pursuant to the Secretary's
authority under the second sentence of subsection
(d)(3).
[(g)] (h) Definitions.--In this section:
(1) * * *
* * * * * * *