S. 5138 — Fairness for Immigrant Families Act of 2026

This section eliminates the 3-year and 10-year bars to admission for periods of unlawful presence. It modifies the permanent bar for reentry after a final removal order by exempting aliens under 21 years of age, those with pending bona fide asylum or withholding applications, family unity beneficiaries, victims of severe trafficking, and certain aliens who entered as children and meet education, military service, or honorable discharge requirements; it also authorizes waivers when denial would cause extreme hardship to a U.S. citizen or lawful permanent resident parent, spouse, or child. The section further exempts aliens under 21 years of age and VAWA self-petitioners from inadmissibility and deportability for willful misrepresentation of U.S. citizenship and expands the related waiver to cover additional family-based and VAWA cases.

This section extends the deadline for certain aliens present in the United States without lawful status to file a petition or labor certification under section 245(i) of the Immigration and Nationality Act from April 30, 2001, to a date not later than 5 years after enactment of the Fairness for Immigrant Families Act of 2026. It also deposits remaining adjustment of status fees into the Immigration Examinations Fee Account.

This section limits reinstatement of prior removal orders for aliens who have not attained age 21 and for those whose reinstatement is not in the public interest, would cause hardship to a U.S. citizen or lawful permanent resident parent, spouse, or child, or would prevent adjudication of a pending asylum application. It also allows spouses, children, and parents of U.S. citizens or lawful permanent residents removed on or after January 20, 2025, to file motions to reopen or reconsider at any time and without numerical limits, with time spent outside the United States not breaking continuous residence requirements.

This section reduces the continuous physical presence requirement for cancellation of removal for nonpermanent residents to 7 years (from 10 years). It changes the hardship standard to extreme hardship to the alien or the alien's spouse, parent, or child who is a U.S. citizen or lawful permanent resident. It authorizes the Attorney General or Secretary of Homeland Security to waive the hardship requirement for parents, spouses, children, and certain classified aliens when admission would not harm national welfare, safety, or security. It creates an affirmative application process for qualifying family members of U.S. citizens with no numerical limitations on approvals. It directs the Secretary to issue final regulations on the new process within 9 months.

This section prohibits the removal of aliens who are beneficiaries of pending immigrant visa petitions or VAWA self-petitions, applicants for T, U, or V nonimmigrant status or special immigrant juvenile classification, or applicants for cancellation of removal. It also bars removal of DACA recipients with active grants or pending renewals and establishes a presumption against detention for these individuals unless they are determined to pose a threat to themselves, the public, or national security.

This section permits an alien to file a motion to reopen removal proceedings at any time upon establishing by a preponderance of the evidence that a representative engaged in fraud, negligence, misrepresentation, extortion, or attempted, promised, or actual unauthorized practice of law.

This section permits an alien to withdraw an application or petition without penalty if the alien establishes by a preponderance of the evidence that the submission resulted from fraud, negligence, misrepresentation, extortion, or attempted, promised, or actual unauthorized practice of law by a representative or individual claiming to be one. It prohibits the Secretary of Homeland Security from issuing a Notice to Appear based on information in such an application, petition, or withdrawal request.

This section requires the Director of U.S. Immigration and Customs Enforcement to personally review and approve the removal of any alien parent or legal guardian of a U.S. citizen or lawful permanent resident child under age 21, and prohibits delegation of that authority. It also mandates quarterly reports to Congress on each review, including the result and rationale for removal.

This section requires the Secretary of Homeland Security to submit to Congress, within 90 days of enactment, a report on the number of covered aliens removed between January 20, 2025, and the date of enactment, and quarterly reports thereafter on the number arrested, detained, subject to final removal orders, removed (with destination countries), and processed through 287(g) agreements or detainers by ICE or CBP. Covered aliens include parents of U.S. citizens, lawful permanent residents, or DACA recipients; DACA recipients themselves; VAWA self-petitioners; T and U visa applicants; and special immigrant juveniles.

This section requires the Secretary of Homeland Security to submit to Congress an initial report within 90 days of enactment on the number of United States citizens detained or removed between January 20, 2025, and the date of enactment. It also directs immediate reports within 24 hours of any such detention or removal and quarterly reports on incidents during the preceding quarter, each including a description of responsive actions taken.

This section directs the Secretary of State, with cooperation from the Secretary of Homeland Security, to submit semiannual reports to Congress on U.S. citizen children under 18 who leave the United States with a removed alien parent or legal guardian. Each report must include the number of such children and, for each, their current and departure ages, country of residence, parental removal or foster care status, and any pending U.S. custody cases. It also establishes a Directorate of Community Outreach in the Department of State to facilitate passports and records, support integration abroad, provide benefits information, and conduct pre-departure consultations.