H.R. 2851 — WISE Act

This section states the purpose of the Act to remove barriers to immigration status for non-citizen survivors of domestic violence, sexual assault, human trafficking, and other crimes who may be eligible for protections under the Violence Against Women Act of 1994 (VAWA) and the Trafficking Victims Protection Act of 2000 (TVPA), as well as other vulnerable immigrants. It expresses the sense of Congress that the Secretary of Homeland Security should reduce such barriers, provide victims timely access to these immigration protections, and refrain from deporting crime victims before their applications for humanitarian relief are fully adjudicated.

This section reforms the U nonimmigrant status program (i.e., U visas for victims of qualifying criminal activity who suffer substantial physical or mental abuse and assist law enforcement) by (1) expanding qualifying criminal activity in INA §101(a)(15)(U)(iii) to include fraud in foreign labor contracting (as defined in 18 U.S.C. §1351), hate crimes, child abuse, and elder abuse; (2) adding "civil violations" related to those activities (defined in new clause (iv)); (3) striking prior qualifying crimes of involuntary servitude, peonage, trafficking, and other crimes except abduction, prostitution, and extortion; (4) requiring petitions to be filed with DHS (previously certifying agencies); (5) eliminating the annual cap of 10,000 U visas; (6) providing employment authorization upon U visa application approval or within 180 days of filing (whichever is earlier), continuing through temporary resident status; (7) directing parole, when appropriate, for pending U visa petitioners and qualifying family members abroad; (8) exempting U visa-related relief from civil penalties for failure to depart; and (9) revising "aging out" protections to maintain child classification for derivative beneficiaries who turn 21 after the principal's petition or adjustment application is filed (previously required pendency at filing and unmarried status). The amendments apply retroactively as if enacted in 2000.

This section establishes a new nonimmigrant classification under INA §101(a)(15)(H) for abused derivative aliens (i.e., spouses or children accompanying or following to join a principal nonimmigrant who have been subjected to battery or extreme cruelty by that principal) and revises INA §106 to provide relief for such aliens. Under the revised §106, the Secretary of Homeland Security (1) must deem an abused derivative alien and any child admissible and eligible to extend their admission period for the longer of the principal's initial admission period or 3 years, with authority to extend further as appropriate; (2) must grant employment authorization to the abused derivative alien and eligible child; and (3) may adjust their status to lawful permanent resident (LPR) if the alien is not inadmissible under INA §212(a) (or if justified on humanitarian, family unity, or public interest grounds) and the principal's status allowed potential adjustment. The section further provides (1) age-out protection for children of adjusted parents (continuing child classification if under 21 at parent's petition filing) and constructive filing for those delayed by abuse (deemed filed by age 21 if petition filed by age 25); (2) continuation of status despite the principal's death, loss of status, or relationship termination if caused by abuse; (3) good faith marriage recognition despite bigamy; (4) procedures mirroring specified VAWA self-petition processes; (5) derivative LPR adjustment or visas for spouses, children, or parents of abused derivatives to avoid extreme hardship; and (6) no preclusion of other adjustment eligibilities. (Thus, the provision offers immigration protections akin to VAWA self-petitions for nonimmigrant derivatives abused by their principal, independent of the principal's status.)

This section establishes in INA §236(f) a presumption of release from detention without conditions for aliens with (1) a pending application for T nonimmigrant status (trafficking victims), U nonimmigrant status (crime victims), special immigrant juvenile status, cancellation of removal under INA §240A(b)(2), or Temporary Protected Status under former INA §244(a)(3); (2) status as a VAWA self-petitioner with a pending application for relief under specified VAWA provisions; or (3) a pending or approved special immigrant petition as an abused spouse or child under INA §101(a)(27)(J). The Secretary of Homeland Security may rebut the presumption based on clear and convincing evidence, retained in the record, that alternatives to detention will not reasonably ensure the alien's appearance at removal proceedings or that the alien is a danger to persons or property, provided a pending or dismissed criminal charge is not the sole basis for continued detention.

This section amends 8 U.S.C. 1367, which prohibits federal officials from basing adverse immigration determinations on information from an alien's abuser (e.g., battering spouse, parent, or trafficker) or disclosing the alien's information (for VAWA self-petitioners, T visa trafficking victims, U visa crime victims, and similar applicants), as follows: (1) in subsection (a)(1), prohibits such determinations based on any abuser-furnished information (previously, solely such information) and makes grammatical changes; (2) in subsection (a)(2), expands the nondisclosure prohibition to cover information, files, or records (previously, information) and makes grammatical changes; (3) adds subsection (a)(3) prohibiting use of information from specified victim applications for any purpose other than the application determination or enforcement of subsection (c), publication that identifies or locates the individual, or examination by non-Department personnel; (4) in subsection (b)(2), limits the law enforcement exception to a criminal investigation or prosecution (from legitimate law enforcement purpose); (5) revises subsection (b)(4) to exempt paragraphs (a)(2) and (3) only if all individuals are adults who waive restrictions in writing; (6) in subsection (c), increases the civil penalty to $10,000 (from $5,000); (7) in subsection (d), requires annual reports to Congress on training, investigations of (a)(1)-(3) violations, and investigation results; and (8) adds subsections (e) requiring rules within 120 days after enactment for a remedial process (with appeals) for violation determinations; (f) authorizing civil actions by injured individuals, including to strike improperly obtained information from records; and (g) requiring annual reports by the Attorneys General, Secretary of State, and Secretary of Homeland Security on employee sanctions for violations.

This section establishes restrictions on immigration enforcement actions (i.e., apprehensions, arrests, interviews, identification requests, searches, or surveillance) at or focused on protected areas—defined as locations within 1,000 feet of medical facilities, schools, places of worship, courthouses, domestic violence shelters, and other specified sensitive sites—by officers of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or other designated personnel. Such actions are prohibited unless they involve exigent circumstances (i.e., national security threats, imminent risk of death/violence/physical harm, immediate pursuit of a public safety threat, or imminent destruction of material evidence in a criminal case) and prior written approval from specified high-level ICE, CBP, or agency officials. (If exigent circumstances cease, the action must be discontinued until they reemerge; officers must limit time spent in protected areas.) Violations render resulting information inadmissible in removal proceedings and allow the subject alien to move for immediate termination of such proceedings.

This section (1) revises eligibility for cancellation of removal for domestic violence survivors under INA §240A(b)(2)(A)(iv) to bar relief only if the noncitizen is inadmissible under INA §212(a)(2)(G), §212(a)(2)(H), or §212(a)(3) or deportable under INA §237(a)(2)(A)(v) or §237(a)(4) (i.e., specified unlawful presence, unlawful activity, security, and domestic violence-related grounds); (2) establishes judicial review of determinations of eligibility for such cancellation or comparable prior relief and provides de novo judicial review of final removal orders against domestic violence survivors, VAWA self-petitioners, T/U visa nonimmigrants, special immigrant juveniles, and similar applicants; and (3) repeals PRWORA §§402, 403, 411, 412, 421, and 422 limiting noncitizen access to federal means-tested benefits such as TANF and SSI (including sponsor income deeming rules), replaces "alien" with "noncitizen" throughout PRWORA Title IV, and expands the definition of qualified noncitizen under PRWORA §431 eligible for state public benefits to include DACA recipients, special immigrant juveniles, pending U visa applicants, and any noncitizen federally authorized to be present (Thus, lawfully present noncitizens generally become eligible for such benefits.).

This section amends the Visa Waiver Program (VWP) under INA §217(b)(2)—which renders aliens ineligible for program participation if they have sought asylum or certain other relief, subject to waiver—to add as disqualifying applications or petitions VAWA self-petitions under INA §101(a)(51), relief under T nonimmigrant status (§101(a)(15)(T)), U nonimmigrant status (§101(a)(15)(U)), cancellation of removal for battered spouses, children, or parents (§240A(b)(2)), special immigrant juvenile (SIJ) status (§101(a)(27)(J)), adjustment of status under §245(h), or any prior comparable relief, with the change applying retroactively to waivers granted before, on, or after enactment. The section further exempts from INA §212(e)'s two-year foreign residence requirement (applicable to J-1 exchange visitors and derivatives) spouses and children of J-1 exchange visitors under §101(a)(15)(J), approved T and U nonimmigrant applicants, VAWA self-petitioners, and SIJs.

This section provides exceptions from inadmissibility and waivers for Violence Against Women Act (VAWA) self-petitioners (i.e., abused spouses, children, or parents of U.S. citizens or lawful permanent residents who self-petition for immigration benefits) under multiple grounds in INA §212(a), as follows: (1) designates VAWA self-petitioners as excepted from the three- and 10-year unlawful presence bars (replacing prior exception for nonimmigrant visa violators treated as unlawful entrants), under §212(a)(9)(B)(iii)(IV); (2) expands waivers of the permanent inadmissibility bar after prior removal to include those granted by the Secretary of Homeland Security or Attorney General for humanitarian purposes, family unity, public interest, or VAWA self-petitioners (replacing prior waiver limited to certain family members of citizens or lawful permanent residents reuniting in the U.S.), under §212(a)(9)(C)(iii), with retroactive applicability to all applications; (3) excepts VAWA self-petitioners from inadmissibility for false claims to U.S. citizenship, under §212(a)(6)(C)(ii); (4) exempts VAWA self-petitioners in the good moral character definition, under §101(f); (5) authorizes the Attorney General to waive the alien smuggling ground for VAWA self-petitioners, under §212(d)(11); and (6) excepts VAWA self-petitioners, T nonimmigrants (trafficking victims), U nonimmigrants (certain crime victims), VAWA-eligible battered spouses or children, and special immigrant juveniles from the entry without inspection ground, under §212(a)(6)(A)(ii).

This section prohibits the removal from the United States of certain individuals seeking immigration relief as survivors of abuse or violence—including those with (1) a pending petition for special immigrant juvenile (SIJ) status under INA §101(a)(27)(J), (2) an approved SIJ petition who have not yet adjusted to lawful permanent resident status, (3) status as a Violence Against Women Act (VAWA) self-petitioner (as defined in INA §101(a)(51)), or (4) eligibility for T nonimmigrant status (human trafficking victims), U nonimmigrant status (victims of qualifying crimes), cancellation of removal as a battered spouse or child under INA §240A(b)(2), or suspension of deportation as a battered spouse or child under former INA §244(a)(3) (as in effect on March 31, 1997)—until a final denial of their application for status after exhaustion of administrative or judicial review. (Thus, these individuals receive protection from deportation proceedings during the pendency of their applications and all appeals.)

This section establishes an exception to ordering removal under this section—including via reinstatement of a prior removal order under subsection (a)(5)—for aliens with a pending application for T nonimmigrant status (i.e., for severe human trafficking victims or derivatives), U nonimmigrant status (i.e., for victims of qualifying crimes or derivatives), special immigrant status under INA §101(a)(51), cancellation of removal for non-lawful permanent residents under INA §240A(b)(2), or suspension of deportation under former INA §244(a)(3) (i.e., for certain designated-country nationals as in effect on March 31, 1997), or a pending or approved petition for special immigrant juvenile status under INA §101(a)(27)(J). (Thus, such aliens may pursue relief through regular removal proceedings rather than expedited reinstatement.)

This section expands Violence Against Women Act (VAWA) self-petition protections for stepchildren of U.S. citizens and lawful permanent residents who were battered or subjected to extreme cruelty by (1) including any period of visitation in the definition of residence and (2) specifying that "citizen parent" or "permanent resident parent" includes a citizen stepparent or permanent resident stepparent, respectively. It further provides that none of the following affects such a stepchild's ability to file a self-petition, have it favorably adjudicated, or prevent revocation of an approved self-petition: (1) death of the stepchild's natural parent, (2) death of the stepchild's stepparent, or (3) divorce between the stepchild's parent and stepparent. (VAWA self-petitions allow qualifying abused spouses and children of U.S. citizens or lawful permanent residents to petition independently for immigrant status.) The amendments apply to self-petitions filed before, on, or after enactment.

This section provides an exception to the civil penalty of up to $500 per day for willful failure to depart the United States pursuant to a final order of removal (under INA §274D(a), 8 U.S.C. 1324d(a)) for VAWA self-petitioners (i.e., abused spouses, children, or parents of U.S. citizens or lawful permanent residents, as defined in INA §101(a)(51)), or aliens who have filed an application for T nonimmigrant status (trafficking victims), U nonimmigrant status (victims of qualifying crimes), or Special Immigrant Juvenile status (abused, neglected, or abandoned juveniles under INA §101(a)(27)(J)).

This section makes technical corrections to the special rule for battered spouses, children, and parents in cancellation of removal proceedings (INA §240(c)(7)(C)(iv)) by (1) revising the heading to “Special rule for battered spouses, children, and parents”; (2) expanding the referenced forms of cancellation of removal and relief from removal in subclause (I) to include INA §240A(b) (from §240A(b)(2)) and former §244(a)(3) (as in effect on March 31, 1997); and (3) correcting a parenthetical citation to the definition of battered alien in 8 U.S.C. §1641(c)(1)(B). (Thus, the rule more comprehensively incorporates forms of relief available to certain abused noncitizens who may qualify for federal public benefits.)

This section authorizes immigration judges, in addition to the Secretary of Homeland Security, to waive application of inadmissibility grounds in INA section 212(a) (except paragraph (3)(E)) for nonimmigrants described in INA section 101(a)(15)(U) (i.e., victims of specified criminal activity—such as domestic violence, trafficking, or involuntary servitude—who have been helpful to law enforcement), if determined to be in the public or national interest. (Thus, such waivers previously could be granted only by DHS.)

This section exempts special immigrant juveniles described in INA §101(a)(27)(J) (i.e., children under 21 who have been abused, abandoned, or neglected by one or both parents, and for whom reunification is not viable due to abuse, neglect, or abandonment) from immigrant visa numerical limitations by making three changes: (1) adding such juveniles to the special immigrants under INA §101(a)(27)(A) or (B) that are exempt from worldwide levels under INA §201(b)(1)(A); (2) excepting such juveniles from per-country limitations under INA §202(a)(2); and (3) adding such juveniles to the employment-based fourth-preference set-aside under INA §203(b)(4) previously limited to special immigrants under INA §101(a)(27)(A) or (B). (Thus, these juveniles no longer compete for capped employment-based visas and face no backlogs from worldwide or per-country limits.)

This section revises the definition of special immigrant juvenile (SIJ)—a classification available to certain noncitizen children under age 21 who are abused, abandoned, or neglected by a parent, declared dependent by a U.S. juvenile court, and for whom return to their home country is not viable—under INA sec. 101(a)(27)(J) (8 U.S.C. 1101(a)(27)(J)) by (1) striking clause (iii), which requires consent from the Secretary of Homeland Security to grant SIJ status (thus eliminating that requirement), and (2) inserting into clause (ii) the exceptions previously in clause (iii), under which no juvenile court may determine custody or placement of an alien in HHS custody absent specific HHS consent, and no natural or prior adoptive parent of an SIJ may thereafter receive any right, privilege, or status under the INA by virtue of such parentage.

This section establishes an exception to time and numerical limitations on motions to reopen removal proceedings for individuals with a pending or approved petition for special immigrant juvenile status (SIJS) under INA §101(a)(27)(J)—a classification available to certain abused, neglected, or abandoned noncitizen children ineligible for reunification with one or both parents—if the motion seeks to apply for adjustment of status. Such individuals may file one such motion at any time (thus eliminating the standard 90-day deadline); the filing automatically stays removal pending final disposition, including appeals; and an immigration judge or the Board of Immigration Appeals may hold the motion in abeyance or grant it to await an available visa.

This section revises the naturalization requirements under INA §319(a) for spouses of U.S. citizens and lawful permanent residents (LPRs) who have been battered or subjected to extreme cruelty. Specifically, it (1) expands eligibility for the three-year continuous U.S. residency path (instead of five years under standard rules) to any such LPR abused by a U.S. citizen who is or was a spouse, parent, son, or daughter (previously limited to those who obtained LPR status based on their relationship to an abusive U.S. citizen spouse or child); (2) eliminates the three-year marital union requirement for victims of battery or extreme cruelty by a U.S. citizen spouse, parent, son, or daughter regardless of the basis for their LPR status (previously applicable only to abuse by a spouse or parent); (3) requires physical presence in the United States for periods totaling at least half of the three-year period and residence for three months in the state or USCIS district where the application is filed; and (4) applies Violence Against Women Act (VAWA) self-petition rules on good moral character waivers (INA §204(a)(1)(J)(i)) and confidentiality (IIRIRA §384) to these naturalization applications. The amendments apply to applications filed before, on, or after the date of enactment.