American Dream and Promise Act of 2021 (H.R. 6; 117th Congress)/Title I

by Lucille Elsa Roybal-Allard

SEC. 101. Short title.

This title may be cited as the “Dream Act of 2021”.

SEC. 102. Permanent resident status on a conditional basis for certain long-term residents who entered the united states as children.

(a) Conditional Basis For Status.—Notwithstanding any other provision of law, and except as provided in section 104(c)(2), an alien shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence under this section, to have obtained such status on a conditional basis subject to the provisions of this title.

(b) Requirements.—

(1) IN GENERAL.—Notwithstanding any other provision of law, the Secretary or the Attorney General shall adjust to the status of an alien lawfully admitted for permanent residence on a conditional basis, or without the conditional basis as provided in section 104(c)(2), an alien who is inadmissible or deportable from the United States, is subject to a grant of Deferred Enforced Departure, has temporary protected status under section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a), or is the son or daughter of an alien admitted as a nonimmigrant under subparagraphs (E)(i), (E)(ii), (H)(i)(b), or (L) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)) if—

(A) the alien has been continuously physically present in the United States since January 1, 2021;

(B) the alien was 18 years of age or younger on the date on which the alien entered the United States and has continuously resided in the United States since such entry;

(C) the alien—

(i) subject to paragraph (2), is not inadmissible under paragraph (1), (6)(E), (6)(G), (8), or (10) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a));

(ii) 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; and

(iii) is not barred from adjustment of status under this title based on the criminal and national security grounds described under subsection (c), subject to the provisions of such subsection; and

(D) the alien—

(i) has been admitted to an institution of higher education;

(ii) has been admitted to an area career and technical education school at the postsecondary level;

(iii) in the United States, has obtained—

(I) a high school diploma or a commensurate alternative award from a public or private high school;

(II) a General Education Development credential, a high school equivalency diploma recognized under State law, or another similar State-authorized credential;

(III) a credential or certificate from an area career and technical education school at the secondary level; or

(IV) a recognized postsecondary credential; or

(iv) is enrolled in secondary school or in an education program assisting students in—

(I) obtaining a high school diploma or its recognized equivalent under State law;

(II) passing the General Education Development test, a high school equivalence diploma examination, or other similar State-authorized exam;

(III) obtaining a certificate or credential from an area career and technical education school providing education at the secondary level; or

(IV) obtaining a recognized postsecondary credential.

(2) WAIVER OF GROUNDS OF INADMISSIBILITY.—With respect to any benefit under this title, and in addition to the waivers under subsection (c)(2), the Secretary may waive the grounds of inadmissibility under paragraph (1), (6)(E), (6)(G), or (10)(D) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) for humanitarian purposes, for family unity, or because the waiver is otherwise in the public interest.

(3) APPLICATION FEE.—

(A) IN GENERAL.—The Secretary may, subject to an exemption under section 303(c), require an alien applying under this section to pay a reasonable fee that is commensurate with the cost of processing the application but does not exceed $495.00.

(B) SPECIAL PROCEDURES FOR APPLICANTS WITH DACA.—The Secretary shall establish a streamlined procedure for aliens who have been granted DACA and who meet the requirements for renewal (under the terms of the program in effect on January 1, 2017) to apply for adjustment of status to that of an alien lawfully admitted for permanent residence on a conditional basis under this section, or without the conditional basis as provided in section 104(c)(2). Such procedure shall not include a requirement that the applicant pay a fee, except that the Secretary may require an applicant who meets the requirements for lawful permanent residence without the conditional basis under section 104(c)(2) to pay a fee that is commensurate with the cost of processing the application, subject to the exemption under section 303(c).

(4) BACKGROUND CHECKS.—The Secretary may not grant an alien permanent resident status on a conditional basis under this section until the requirements of section 302 are satisfied.

(5) MILITARY SELECTIVE SERVICE.—An alien applying for permanent resident status on a conditional basis under this section, or without the conditional basis as provided in section 104(c)(2), shall establish that the alien has registered under the Military Selective Service Act (50 U.S.C. 3801 et seq.), if the alien is subject to registration under such Act.

(c) Criminal And National Security Bars.—

(1) GROUNDS OF INELIGIBILITY.—Except as provided in paragraph (2), an alien is ineligible for adjustment of status under this title (whether on a conditional basis or without the conditional basis as provided in section 104(c)(2)) if any of the following apply:

(A) The alien is inadmissible under paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)).

(B) Excluding any offense under State law for which an essential element is the alien’s immigration status, and any minor traffic offense, the alien has been convicted of—

(i) any felony offense;

(ii) three or more misdemeanor offenses (excluding simple possession of cannabis or cannabis-related paraphernalia, any offense involving cannabis or cannabis-related paraphernalia which is no longer prosecutable in the State in which the conviction was entered, and any offense involving civil disobedience without violence) not occurring on the same date, and not arising out of the same act, omission, or scheme of misconduct; or

(iii) a misdemeanor offense of domestic violence, unless the alien demonstrates that such crime is related to the alien having been—

(I) a victim of domestic violence, sexual assault, stalking, child abuse or neglect, abuse or neglect in later life, or human trafficking;

(II) battered or subjected to extreme cruelty; or

(III) a victim of criminal activity described in section 101(a)(15)(U)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)(iii)).

(2) WAIVERS FOR CERTAIN MISDEMEANORS.—For humanitarian purposes, family unity, or if otherwise in the public interest, the Secretary may—

(A) waive the grounds of inadmissibility under subparagraphs (A), (C), and (D) of section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)), unless the conviction forming the basis for inadmissibility would otherwise render the alien ineligible under paragraph (1)(B) (subject to subparagraph (B)); and

(B) for purposes of clauses (ii) and (iii) of paragraph (1)(B), waive consideration of—

(i) one misdemeanor offense if the alien has not been convicted of any offense in the 5-year period preceding the date on which the alien applies for adjustment of status under this title; or

(ii) up to two misdemeanor offenses if the alien has not been convicted of any offense in the 10-year period preceding the date on which the alien applies for adjustment of status under this title.

(3) AUTHORITY TO CONDUCT SECONDARY REVIEW.—

(A) IN GENERAL.—Notwithstanding an alien’s eligibility for adjustment of status under this title, and subject to the procedures described in this paragraph, the Secretary may, as a matter of non-delegable discretion, provisionally deny an application for adjustment of status (whether on a conditional basis or without the conditional basis as provided in section 104(c)(2)) if the Secretary, based on clear and convincing evidence, which shall include credible law enforcement information, determines that the alien is described in subparagraph (B) or (D).

(B) PUBLIC SAFETY.—An alien is described in this subparagraph if—

(i) excluding simple possession of cannabis or cannabis-related paraphernalia, any offense involving cannabis or cannabis-related paraphernalia which 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 alien’s immigration status, any offense involving civil disobedience without violence, and any minor traffic offense, the alien—

(I) has been convicted of a misdemeanor offense punishable by a term of imprisonment of more than 30 days; or

(II) has been adjudicated delinquent in a State or local juvenile court proceeding that resulted in a disposition ordering placement in a secure facility; and

(ii) the alien poses a significant and continuing threat to public safety related to such conviction or adjudication.

(C) PUBLIC SAFETY DETERMINATION.—For purposes of subparagraph (B)(ii), the Secretary shall consider the recency of the conviction or adjudication; the length of any imposed sentence or placement; the nature and seriousness of the conviction or adjudication, including whether the elements of the offense include the unlawful possession or use of a deadly weapon to commit an offense or other conduct intended to cause serious bodily injury; and any mitigating factors pertaining to the alien’s role in the commission of the offense.

(D) GANG PARTICIPATION.—An alien is described in this subparagraph if the alien has, within the 5 years immediately preceding the date of the application, knowingly, willfully, and voluntarily participated in offenses committed by a criminal street gang (as described in subsections (a) and (c) of section 521 of title 18, United States Code) with the intent to promote or further the commission of such offenses.

(E) EVIDENTIARY LIMITATION.—For purposes of subparagraph (D), allegations of gang membership obtained from a State or Federal in-house or local database, or a network of databases used for the purpose of recording and sharing activities of alleged gang members across law enforcement agencies, shall not establish the participation described in such paragraph.

(F) NOTICE.—

(i) IN GENERAL.—Prior to rendering a discretionary decision under this paragraph, the Secretary shall provide written notice of the intent to provisionally deny the application to the alien (or the alien’s counsel of record, if any) by certified mail and, if an electronic mail address is provided, by electronic mail (or other form of electronic communication). Such notice shall—

(I) articulate with specificity all grounds for the preliminary determination, including the evidence relied upon to support the determination; and

(II) provide the alien with not less than 90 days to respond.

(ii) SECOND NOTICE.—Not more than 30 days after the issuance of the notice under clause (i), the Secretary shall provide a second written notice that meets the requirements of such clause.

(iii) NOTICE NOT RECEIVED.—Notwithstanding any other provision of law, if an applicant provides good cause for not contesting a provisional denial under this paragraph, including a failure to receive notice as required under this subparagraph, the Secretary shall, upon a motion filed by the alien, reopen an application for adjustment of status under this title and allow the applicant an opportunity to respond, consistent with clause (i)(II).

(G) JUDICIAL REVIEW OF A PROVISIONAL DENIAL.—

(i) IN GENERAL.—Notwithstanding any other provision of law, if, after notice and the opportunity to respond under subparagraph (F), the Secretary provisionally denies an application for adjustment of status under this Act, the alien shall have 60 days from the date of the Secretary’s determination to seek review of such determination in an appropriate United States district court.

(ii) SCOPE OF REVIEW AND DECISION.—Notwithstanding any other provision of law, review under paragraph (1) shall be de novo and based solely on the administrative record, except that the applicant shall be given the opportunity to supplement the administrative record and the Secretary shall be given the opportunity to rebut the evidence and arguments raised in such submission. Upon issuing its decision, the court shall remand the matter, with appropriate instructions, to the Department of Homeland Security to render a final decision on the application.

(iii) APPOINTED COUNSEL.—Notwithstanding any other provision of law, an applicant seeking judicial review under clause (i) shall be represented by counsel. Upon the request of the applicant, counsel shall be appointed for the applicant, in accordance with procedures to be established by the Attorney General within 90 days of the date of the enactment of this Act, and shall be funded in accordance with fees collected and deposited in the Immigration Counsel Account under section 312.

(4) DEFINITIONS.—For purposes of this subsection—

(A) the term “felony offense” means an offense under Federal or State law that is punishable by a maximum term of imprisonment of more than 1 year;

(B) the term “misdemeanor offense” means an offense under Federal or State law that is punishable by a term of imprisonment of more than 5 days but not more than 1 year; and

(C) the term “crime of domestic violence” means any offense that has as an element the use, attempted use, or threatened use of physical force against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian Tribal government, or unit of local government.

(d) Limitation On Removal Of Certain Alien Minors.—An alien who is 18 years of age or younger and meets the requirements under subparagraphs (A), (B), and (C) of subsection (b)(1) shall be provided a reasonable opportunity to meet the educational requirements under subparagraph (D) of such subsection. The Attorney General or the Secretary may not commence or continue with removal proceedings against such an alien.

(e) Withdrawal Of Application.—The Secretary shall, upon receipt of a request to withdraw an application for adjustment of status under this section, cease processing of the application, and close the case. Withdrawal of the application under this subsection shall not prejudice any future application filed by the applicant for any immigration benefit under this title or under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

SEC. 103. Terms of permanent resident status on a conditional basis.

(a) Period Of Status.—Permanent resident status on a conditional basis is—

(1) valid for a period of 10 years, unless such period is extended by the Secretary; and

(2) subject to revocation under subsection (c).

(b) Notice Of Requirements.—At the time an alien obtains permanent resident status on a conditional basis, the Secretary shall provide notice to the alien regarding the provisions of this title and the requirements to have the conditional basis of such status removed.

(c) Revocation Of Status.—The Secretary may revoke the permanent resident status on a conditional basis of an alien only if the Secretary—

(1) determines that the alien ceases to meet the requirements under section 102(b)(1)(C); and

(2) prior to the revocation, provides the alien—

(A) notice of the proposed revocation; and

(B) the opportunity for a hearing to provide evidence that the alien meets such requirements or otherwise to contest the proposed revocation.

(d) Return To Previous Immigration Status.—An alien whose permanent resident status on a conditional basis expires under subsection (a)(1) or is revoked under subsection (c), shall return to the immigration status that the alien had immediately before receiving permanent resident status on a conditional basis.

SEC. 104. Removal of conditional basis of permanent resident status.

(a) Eligibility For Removal Of Conditional Basis.—

(1) IN GENERAL.—Subject to paragraph (2), the Secretary shall remove the conditional basis of an alien’s permanent resident status granted under this title and grant the alien status as an alien lawfully admitted for permanent residence if the alien—

(A) is described in section 102(b)(1)(C);

(B) has not abandoned the alien’s residence in the United States during the period in which the alien has permanent resident status on a conditional basis; and

(C) (i) has obtained a degree from an institution of higher education, or has completed at least 2 years, in good standing, of a program in the United States leading to a bachelor’s degree or higher degree or a recognized postsecondary credential from an area career and technical education school providing education at the postsecondary level;

(ii) has served in the Uniformed Services for at least 2 years and, if discharged, received an honorable discharge; or

(iii) demonstrates earned income for periods totaling at least 3 years and at least 75 percent of the time that the alien has had a valid employment authorization, except that, in the case of an alien who was enrolled in an institution of higher education, an area career and technical education school to obtain a recognized postsecondary credential, or an education program described in section 102(b)(1)(D)(iii), the Secretary shall reduce such total 3-year requirement by the total of such periods of enrollment.

(2) HARDSHIP EXCEPTION.—The Secretary shall remove the conditional basis of an alien’s permanent resident status and grant the alien status as an alien lawfully admitted for permanent residence if the alien—

(A) satisfies the requirements under subparagraphs (A) and (B) of paragraph (1);

(B) demonstrates compelling circumstances for the inability to satisfy the requirements under subparagraph (C) of such paragraph; and

(C) demonstrates that—

(i) the alien has a disability;

(ii) the alien is a full-time caregiver; or

(iii) the removal of the alien from the United States would result in hardship to the alien or the alien’s spouse, parent, or child who is a national of the United States or is lawfully admitted for permanent residence.

(3) CITIZENSHIP REQUIREMENT.—

(A) IN GENERAL.—Except as provided in subparagraph (B), the conditional basis of an alien’s permanent resident status granted under this title may not be removed unless the alien demonstrates that the alien satisfies the requirements under section 312(a) of the Immigration and Nationality Act (8 U.S.C. 1423(a)).

(B) EXCEPTION.—Subparagraph (A) shall not apply to an alien who is unable to meet the requirements under such section 312(a) due to disability.

(4) APPLICATION FEE.—The Secretary may, subject to an exemption under section 303(c), require aliens applying for removal of the conditional basis of an alien’s permanent resident status under this section to pay a reasonable fee that is commensurate with the cost of processing the application.

(5) BACKGROUND CHECKS.—The Secretary may not remove the conditional basis of an alien’s permanent resident status until the requirements of section 302 are satisfied.

(b) Treatment For Purposes Of Naturalization.—

(1) IN GENERAL.—For purposes of title III of the Immigration and Nationality Act (8 U.S.C. 1401 et seq.), an alien granted permanent resident status on a conditional basis shall be considered to have been admitted to the United States, and be present in the United States, as an alien lawfully admitted for permanent residence.

(2) LIMITATION ON APPLICATION FOR NATURALIZATION.—An alien may not apply for naturalization while the alien is in permanent resident status on a conditional basis.

(c) Timing Of Approval Of Lawful Permanent Resident Status.—

(1) IN GENERAL.—An alien granted permanent resident status on a conditional basis under this title may apply to have such conditional basis removed at any time after such alien has met the eligibility requirements set forth in subsection (a).

(2) APPROVAL WITH REGARD TO INITIAL APPLICATIONS.—

(A) IN GENERAL.—Notwithstanding any other provision of law, the Secretary or the Attorney General shall adjust to the status of an alien lawfully admitted for permanent resident status without conditional basis, any alien who—

(i) demonstrates eligibility for lawful permanent residence status on a conditional basis under section 102(b); and

(ii) subject to the exceptions described in subsections (a)(2) and (a)(3)(B) of this section, already has fulfilled the requirements of paragraphs (1) and (3) of subsection (a) of this section at the time such alien first submits an application for benefits under this title.

(B) BACKGROUND CHECKS.—Subsection (a)(5) shall apply to an alien seeking lawful permanent resident status without conditional basis in an initial application in the same manner as it applies to an alien seeking removal of the conditional basis of an alien’s permanent resident status. Section 102(b)(4) shall not be construed to require the Secretary to conduct more than one identical security or law enforcement background check on such an alien.

(C) APPLICATION FEES.—In the case of an alien seeking lawful permanent resident status without conditional basis in an initial application, the alien shall pay the fee required under subsection (a)(4), subject to the exemption allowed under section 303(c), but shall not be required to pay the application fee under section 102(b)(3).

SEC. 105. Restoration of State option to determine residency for purposes of higher education benefits.

(a) In General.—Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed.

(b) Effective Date.—The repeal under subsection (a) shall take effect as if included in the original enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–546).