Siskind Summary: The SUCCEED Act

By Greg Siskind (gsiskind@visalaw.com)

Senate Republicans have introduced the SUCCEED Act as an alternative to the DREAM Act to provide relief to DACA recipients.

Section 1. Short Title; Table of Contents

“Solution for  Undocumented Children through Careers, Employment, Education and Defending our Nation Act” or the “SUCCEED Act”.

Section 2. Definitions

Alien Enlistee – A conditional permanent resident who seeks to comply with bill requirements through enlistment & service in the Armed Forces.

Alien Postsecondary Student – A conditional permanent resident who seeks to comply with the bill requirements through enrolling in and graduating from an institution of higher education in the US.  

Conditional Permanent Resident (CPR) – 1) An alien who is granted conditional permanent resident status under this bill. CPRs shall not be considered to be unlawfully present in the US for purposes of Section 505 of the 1996 Immigration Act which bars states from granting in-state tuition to illegally present immigrants (states have bypassed this by conditioning in-state tuition on graduating from a state high school). 2) CPRs shall not be considered a lawful permanent resident for purposes of petitioning for relatives under section 204(a) of the INA or filing for adjustment of status under INA section 245(a). 3) CPRs must intend to permanently reside in the US. 4) CPRs are not required to have a foreign residence which they don’t intend to abandon. 5) CPRs are considered to have been inspected and admitted for purposes of INA Section 245(a) in order to later adjust to permanent residency AFTER CPR status has been removed under Section 5 of the bill.

Federal Public Benefit – the American Opportunity Tax Credit authorized under IRC Section 24A(i) [tax credits available to offset certain higher education costs], the Earned Income Tax Credit [tax credit available for people earning under a certain income level], the Health Coverage Tax Credit [available to certain people based on jobs lost due to international trade agreements and people whose pensions were taken over by the Pension Benefit Guaranty Corporation (PBGC) because of financial difficulties], Social Security benefits, Medicare benefits, and benefits under the Federal-State Unemployment Compensation Act.

Institution of Higher Education – Includes US institutions defined under section 102 of the Higher Education Act of 1965.

Applicable Federal Tax Liability – liability for federal taxes including penalties and interest.

Secretary – Secretary of Homeland Security

Significant Misdemeanor – A criminal offense involving domestic violence; sexual abuse or exploitation, burglary, unlawful possession or use of a firearm; drug distribution or trafficking; or DUI. Also, any misdemeanor for which the individual was sentenced for a term of not less than 90 days (excluding a suspended sentence).

Section 3. Cancellation of Removal of Certain Long-Term Residents Who Entered the US as Children.

Special Rule for Certain Long-Term Residents Who Entered the United States as Children

The Secretary may cancel the removal of an alien who is inadmissible or deportable from the US and grant CPR if the alien a) has been physically present in the US for a continuous period since 6/15/12;

b) was younger than 16 years of age on the date when the alien initially entered the US;

c) was younger than 31 years of age and no lawful status in the US on 6/15/12;

d) If 18 years of age or older, the person has 1) while in the US, earned a high school diploma or GED; 2) has been admitted to an institution of higher education in the US; or 3) has served, is serving, or has enlisted in the Armed Forces;

e) If younger than 18 years of age, 1) is attending or has enrolled in a primary or secondary school; or 2) is attending, or has enrolled in, a postsecondary school. NOTE: This will allow children too young to apply for DACA to be eligible for CPR;

f) has been a person of good moral character since the date on which the alien entered the US-based on section 101(f) of the INA. That INA section refers to the following:

  • Habitual drunkards
  • Certain drug offenders
  • Professional gamblers and people convicted of illegal gambling
  • People who have lied to get immigration benefits
  • People jailed for an aggregate period of 180 days or more regardless of the offense
  • People convicted of an aggravated felony
  • People who have participated in torture or genocide or committed severe violations of religious freedom
  • Other offenses not named above can still lead to a determination one lacks good moral character

False claims to citizenship or registering or voting in violation of the law are not violations if both parents are US citizens [note – not all children automatically naturalize with their parents], they were citizens before the person was 16 and the person believed he or she was a citizen

g) has paid federal taxes or is on a payment plan approved by the IRS;

h) is not inadmissible under INA Section 212(a) or deportable under Section 237(a) for the following reasons –

  • Has no listed diseases and has required vaccinations, no physical or mental illnesses posing a danger to others, and is not a habitual drug user or addict
  • Not inadmissible on criminal grounds
  • Security and terrorism grounds, people whose entry would have negative foreign policy consequences for the US, membership in totalitarian party, participants in persecution, torture and genocide, recruiter of child soldiers
  • Public charge grounds (people who are a financial burden on the country)
  • Fraudulently or willfully misrepresenting a material fact to procure a visa or admission into the US or falsely claimed citizenship
  • Alien smugglers
  • People permanently ineligible for citizenship and draft evaders
  • Aliens ordered removed who illegally re-enter or attempt to re-enter the US
  • Practicing polygamists, international child abductors, unlawful voters, former citizens who renounced to avoid taxation
  • Engaging in marriage fraud
  • Failure to register address changes (unless DHS determines failure was excusable)

The alien has not been convicted of a felony under State or Federal law, regardless of the sentence imposed, any combination of offenses under Federal or State law for which the alien was sentenced to imprisonment for at least one year; a significant misdemeanor and has never been under a final order of removal unless the person has remained in the US under color of law after such final order was issued or received the order before attaining 18 years of age.

DHS may waive, on a case-by-case basis and for humanitarian reasons, a ground of inadmissibility based on health, public charge, failure to attend removal proceeding [query – 212(a)(6)(b) is not listed as a ground to deny CPR so why would waiver be needed?], and alien smuggling and visa and immigration status violators. DHS must report within 180 days after enactment the number of waivers granted and denied and then report that information quarterly.

Application procedures.

DHS shall issue regulations allowing eligible people to apply for relief without being placed in removal proceedings.

Each alien applying for CPR who are at least 18, must sign an acknowledgment confirming the alien was notified that he or she will be ineligible for any form of relief or immigration benefit under this bill or other immigration laws other than withholding of removal under 214(b)(3) or Convention Against Torture claims if the alien violates a term for CPR. DHS can make an exception if warranted on humanitarian grounds or in the public interest. Courts may not review these determinations.

Applicants must submit biometric and biographic data. Alternative procedures for people with physical disabilities or impairments.

Background checks – DHS shall use biometric, biographic and other data that DHS to conduct security and law enforcement background checks and to determine if there are any factors that would render the applicant ineligible for relief. Cancellation of removal won’t happen until checks are complete. DHS will seek information on criminal activity from international law enforcement agencies and the country of last habitual residence.

Medical examinations will be submitted.

Applicants must register for Selective Service if required.

Expunged convictions – Expunged convictions shall be evaluated by DHS on a case-by-case basis according to the nature and severity of the offense to determine eligibility for CPR, removal of CPR status or adjustment to permanent residency. No judicial review of these determinations.

Termination of Continuous Period – ANy required periods of continuous residence are not interrupted by being served a notice to appear in a removal proceeding under section 239(a) of the INA.

Treatment of Certain Breaks in Presence – Departures of more than 90 continuous days or more than 180 days in the aggregate in a five-year period will break continuous residence. Exceptions made if failure to return to the US was for exceptional circumstances such as serious illness of the alien or the death or serious illness of the alien’s parent, grandparent, sibling or child. Absences due to military service are excused.

DHS shall publish rules implementing this section within 180 days of enactment. They may be issued on an interim basis with a final rule due within a reasonable period of time.

DHS may not remove an alien who establishes prima facie eligibility for cancellation or removal and CPR until the alien has had a reasonable chance to file a CPR application.

Section 4. Conditional Permanent Resident Status.

CPR shall be granted for an initial period of 5 years or when the alien reaches 18 if after 5 years.

CPRs may be employed in the US incident to CPR status and enlist in the Armed Forces.

CPRS may travel outside the US and may be admitted without having to obtain a visa if the alien has a valid CPR document and the absence from the US was not for more than 180 days or longer or for multiple periods exceeding 180 days in the aggregate or was due to service in the Armed Forces.

DHS shall terminate CPR status for an alien who is 18+ years of age if DHS determines the alien is a postsecondary student in an accredited institution of higher education in the US but failed to enroll in such institution within 1 year after the date on which the alien was granted CPR.

DHS shall terminate CPR for children under 18 if DHS determines the child enrolled in a primary or secondary school as a full-time student but has failed to attend for a period exceeding 1 year during the date on which the child was granted CPR.

DHS shall terminate CPR for enlistees who received CPR status on that basis and failed to complete basic training and begin active duty service within 1 year or received a discharge which was not honorable.

DHS will also terminate for people who got CPR fraudulently, no longer are meeting CPR requirements or has become a public charge, has not maintained employment in the US for a year since being granted CPR while the alien was not enrolled as a student or enlisted in the Armed Forces or hasn’t completed a combination of employment, military service or postsecondary school totaling 48 months during the 5-year period beginning on the date CPR status was granted.

People whose CPR is revoked for failing to meet CPR requirements shall be subject to expedited removal.

Once CPR status revoked, the alien returns to status the person had immediately before receiving CPR.

 

Extension of CPR Status.

DHS shall extend CPR for an additional 5 years if the alien has demonstrated good moral character during the entire CPR period, is in compliance with CPR requirements, has not abandoned residence in the US, doesn’t have tax liabilities, is not receiving Federal public benefits and has graduated from college, attended a postsecondary school for at least 8 semesters, has served as a member of the Armed Forces for 3 years and, if discharged, received an honorable discharge, or has attended a postsecondary school, served in the Armed Forces or maintained employment for a cumulative total of not less than 48 months.

Section 5. Removal of Conditional Basis for Permanent Residence

Aliens who have been CPR for at least 10 years may file an application to remove conditions and adjust to (unconditional) permanent residence. If the requirements for adjusting are not met, CPR status may be terminated and adjustment denied.

Applicants may apply to adjust status up to 180 days before the 10 year CPR period expires through the expiration date of CPR. CPR shall be deemed to continue while the adjustment is pending.

Adjustment applications must contain proof of maintaining CPR status for 10 years, good moral character, and no abandonment of residence in the US (presumed if absent for an aggregate of 365 days unless alien can show otherwise and not including Armed Services work).

 

Citizenship requirement. CPRs may not have conditions removed unless they can pass the citizenship English test unless there are developmental or mental impairments explaining this.

No adjustment of status without being current on taxes.

Biometrics and biographic data are required and must be reviewed before adjustment granted.

There are no numerical limitations on adjustment of status for people going this route.

Section 6. Limitation on Parole Authority.

INA is amended to say DHS may not use parole authority to parole generalized categories or classes of aliens based on nationality, presence or residence in the US, family relationships, or any other criteria that would cover a broad group of foreign nationals, whether inside or outside the US.

Advance parole is separately defined to distinguish it from other parole categories.

Section 7. Failure to Comply With Status Requirements; Visa Overstays

VWP applicants must sign an acknowledgment confirming the alien has been notified he or she will be ineligible for any right to apply for adjustment of status if the alien fails to depart at the end of the 90-day period for admission and waives any right to review or appeal a determination of admissibility at a port of entry into the US and waives the right to contest removal (except for asylum applicants).

NIV applicants must sign an acknowledgment that they understand no right to apply to adjust status if the alien violates any term or condition of his or her nonimmigrant visa.

DHS may not issue an NIV (other than an A or G visa) until the alien has waived right to adjust status in the US and from contesting removal if the alien violates a term of NIV status or fails to depart at the end of the alien’s authorized period of stay.

Section 8. Benefits for Relatives of Aliens Granted Conditional Permanent Resident Status.

CPRs may not sponsor family members for any immigration benefit and having CPR may not be used to provide special consideration for relatives to remain in the US (appears to eliminate using a CPR to help a family member get cancellation of removal).

Section 9. Exclusive Jurisdiction.

DHS shall have exclusive jurisdiction to determine eligibility for CPR and adjustment. The AG shall terminate final removal orders after the alien has been granted CPR status. The AG has jurisdiction to determine eligibility for relief under this Act for any alien has been placed into deportation, exclusion or removal proceedings until proceedings are terminated.

Section 10. Confidentiality of Information.

Information provided in a CPR application may not be used to initiate removal proceedings and will keep application information confidential. Information may be shared with law enforcement authorities or with a coroner to assist in identifying a deceased individual. $10,000 fine for violating this section.

Section 11. Restriction on Welfare Benefits for Conditional Permanent Residents.

For purposes of the current 5-year wait applicable to green card holders to apply for public benefits, individuals have met the requirements to adjust status from CPR shall be considered to have met the 5-year requirement (i.e. they can apply after ten years).

Section 12. GAO Report.

Within 7 years, the Comptroller General shall submit a report to the Judiciary Committees of the Senate and House a report setting forth data on usage of the CPR program.

Section 13. Military Enlistment.

Military enlistment eligibility section of US Code amended to include CPRs.

Section 14. Eligibility for Naturalization.

People adjusting to permanent residency under this bill may apply to naturalize not later than 5 years after such adjustment of status.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind

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