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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\
---------------------------------------------------------------------------
    \1\See section 216(a)(1) of the Immigration and Nationality Act.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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) * * *

           *       *       *       *       *       *       *