844-page Gang of 8 CIR bill released

The full text of the immigration reform bill from the so-called “Gang of 8,” a bipartisan cluster of U.S. senators, has been released. You can read the full 844-page text here: http://dyn.politico.com/printstory.cfm?uuid=EC14BD2A-B1A3-33E6-C34D5DBBE17CAA06

In the coming days we will post summaries and updates from observers across the country as well as our own analysis as needed.

Amid all the excitement around this announcement it is important to keep in mind that this is only the first step on a long journey toward reforming U.S. immigration laws. All sides — business, labor, immigrant advocates, and those who favor reduced immigration — will weigh in and push the bill in different directions.

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Rough outline of Senate immigration reform gives answers, raises questions

The Twittersphere has been abuzz today with news of all flavors including updates on the tragedy in Boston. Those events have caused the U.S. Senate’s “Gang of Eight” to postpone their scheduled press conference on their compromise immigration legislation, but a rough outline of the proposal has been circulating on the Internet. Below we highlight some of the elements that are most important for our clients.

The document is very much a rough draft and further clarification will be needed to understand what is meant by some proposals. Moreover, it is the case that whatever is being proposed in this document is only an opening bid. The U.S. Senate could amend this legislation before passing it, and the House of Representatives will also weigh in with its own proposal. Final legislation would have to represent a merger of those two ideas.

Here are some key highlights as we understand them:

  • Attainment of Lawful Status

The outline describes a new status for undocumented immigrants known as Registered Provision Immigrant (RPI). To qualify for RPI status one must have been physically present in the U.S. prior to December 31, 2011 and continuously since then. One cannot be inadmissible for criminal, national security, public health, or “morality” grounds and cannot have criminal history that includes a felony, federally defined “aggravated felony,” 3 or more misdemeanors, any foreign conviction, or who has unlawfully voted.

To attain RPI status one would have to pay a $500 fine and “assessed taxes” in addition to any processing fees.  The status would be renewable in six-year increments with a $500 fine each time. Individuals would have one year from enactment to file for RPI status (possibly extended to two years).

RPI status would also be available to individuals who were deported for non-criminal reasons prior to December 31, 2011 if they have family in the United States. It is unclear what this means for individuals deported after December 31, 2011 – they seem not to qualify for either version of RPI.

  • Merit-Based System/Visa

All RPI individuals will have to adjust status to Lawful Permanent Residence through a “Merit-Based System” that takes into account an applicant’s education, employment, and ties to the country among other factors. Between 120,000 and 250,000 merit-based visas would be allocated per year. The terms “Merit-Based System” and “Merit-Based Visa” are both used and it is unclear if these are different concepts or the same thing called by different names.

This pathway to citizenship would not open until border security measures have been deemed successful, existing family- and employment-based backlogs are cleared, and applicant must have been in RPI status for ten years, have paid taxes and worked regularly, demonstrate knowledge of U.S. civics and history, and pay a $1,000 fine.

It is not explicit in the outline but potentially individuals could obtain RPI status for a time and then utilize another aspect of the immigration system (e.g. the traditional family-based system) to obtain Permanent Resident status.

Conflicting language is used regarding the relationship between the Merit-Based System and the options for DREAM Act and AgJOBS immigrants. Do they get their own path or will they enter the Merit-Based System?

  • DREAM Act and AgJOBS

The outline refers to the DREAM Act but does not explain which version of that proposed legislation would be used. DREAMers would become eligible for Lawful Permanent Residence after five years in RPI status and could immediately naturalize as U.S. citizens.

The proposal also absorbs the AgJOBS legislation permitting undocumented farm workers to obtain an Agricultural Card. The specifics of this Card are not available in great detail. To qualify one would have to pay a $400 fine, pay assessed taxes, and have a clean criminal history. After five years in AgJOBS status individuals could adjust status to Lawful Permanent Residence.

  • Family-Based Immigration

The outline states that it will clear out the backlog of family-based immigration but it is not clear if this will be done by increasing visa levels or by simply closing the line and letting time run its course. No new F-4 (siblings of U.S. citizens) applications will be accepted 18 months after the law is enacted. The current F-2A category will become part of the immediate relative category, and the IR category appears to be expanded to include derivatives of IRs. The F-1, F-2B, and F-3 categories will be reshuffled in ways that are not entirely clear but which appear to make use of the V Visa (permitting certain individuals to live and work in the U.S. while they await visa availability) and which cut off future immigration of married sons and daughters who are over the age of 30.

Turning F-2A individuals into IRs and retiring the F-4 category will help clear the backlog and these newly available visas will be shared among employment- and family-based categories. It is not obvious how the math would work out and if these measures alone (as opposed to raising the visa caps) could clear the backlogs in 10 years or less.

  • The Border Trigger

Six months after enactment of the legislation, two related border security policies must be created and begun. No undocumented individual may receive RPI status until these policies are in effect. Successful implementation of these policies will also be a requirement before RPI individuals (other than DREAM or Agricultural workers) can obtain Lawful Permanent Residence. The outline also authorizes billions of dollars in expenditures to increase border surveillance, speed up removals at the border, create a multi-layer border fence, and for other border security measures.

  • E-Verify

The use of E-Verify would become universal over a five-year period. All non-citizens would be required to retain a biometric-based employment authorization document in order to seek employment. U.S. citizens could use U.S. passports or state driver’s licenses for proof of employment authorization (as long as those state DMVs share photo-capture information with DHS).

  • High-Skill Labor

The outline scraps the existing Diversity Visa system that permits immigration from historically underrepresented countries and in its place increases opportunities for high-skilled workers and entrepreneurs. Caps on H-1B visas will be tweaked to make them more fluid to match labor conditions and to cut down on abuse. H-1B visas could nearly triple over time. Those who come on student visas for bachelor’s degree or higher programs will receive dual-intent visas (making it easier for them to choose to live permanently in the U.S.).

  • Low-Skill Labor

A guest worker program (the W Visa) will be created for individuals who live in a foreign country to come to the United States to work for three years at a time. Such individuals could bring their spouses and children with them and travel would be permitted. Principal W Visa workers may not be unemployed for more than 60 consecutive days but they may seek other job opportunities as well as promotions to higher-skill positions after 1 year with an employer. Employers who seek to have W Visa workers must comply with a registration process that must be renewed every three years. The registration process is meant to prevent unscrupulous or abusive employers from using W Visa workers. Policies would attempt to prevent W Visa workers from lowering the wages of native workers and to prevent W Visas from being over-represented in the construction industry.

 

More than anything, this outline feels like a catharsis. Observers have been pent up for months watching and waiting to see what the pathway to citizenship and overhaul of immigration policy may look like, and now we have a start to that conversation.

Many questions remain, among them:

How will business and labor interests receive the news of the W Visa, the tweaks to the high-skilled labor force, and the overhaul of temporary agricultural workers?

How will immigration advocates receive the requirement that most undocumented individuals wait 10+ years, master English and U.S. civics, and prevail in a competitive points-based system in order to attain lawful immigration status?

How will the public view the new approaches to employment- and family-based immigration?

Will the availability of waivers be expanded to cover the many circumstances not provided for in this draft legislation?

How can skilled immigration practitioners navigate between existing and new systems to help clients attain lawful immigration status, reunite families, and move forward on a pathway to citizenship?

As details emerge and answers to those questions reveal themselves we will keep our readers appraised.

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@AP reports early leaks of details of forthcoming Senate CIR bill | Will advocates take what they’re given? http://ow.ly/k1Eye

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Sudden reveal of Customer Identification Verification leads immediately to public confusion

With little prior notice — at least none that our program was aware of — USCIS announced Monday a new program to bolster security and combat fraud at key immigration appointments. The initiative, called Customer Identification Verification or CIV, seems at first glance to be a sensible, appropriate step to ensure the integrity of immigration processes. But the way the news has gotten out suggests missteps in the unveiling of CIV.

The first mention our Immigration Assistance Program heard about CIV was from a panicked call from a potential client on Tuesday morning. She had been watching the noticias on Spanish-language broadcaster Univision and she came away with the impression that, effective immediately, all visits to USCIS offices would require visitors to submit to biometrics capture including fingerprinting and photo.

The reality is more benign — and most likely it is a good development. Beginning on May 6, 2013 USCIS will begin requiring fingerprint and photo processing for individuals present for an immigration interview or in order to receive evidence of an immigration benefit. What this means is that individuals who arrive for a naturalization exam or a marriage-based immigration interview will have their identity verified to ensure that someone is not testing/interviewing in someone else’s place.

Similarly, when someone goes to receive an I-551 stamp (e.g. temporary proof of Permanent Residency while a Permanent Resident Card replacement is pending) or another form of immigration documentation verification will be done to make sure that some other individual is not standing in to have his or her passport stamped or I-94 issued.

To the extent that the new CIV process can be implemented without adding undue delay or complexity to existing protocols, this seems like a reasonable development and a good way for USCIS to preserve the integrity of its procedures. Time will tell if this new layer of security will impose delays and costs that are appropriately in line with the security risks posed by brazen fraud such as is described above.

Whatever the merits of the new CIV initiative, it is worth noting that this seems to have been dropped on the public with little advance notice even to service providers. We remain hopeful that this development helps rather than hinders USCIS functions, but we are worried that the way in which news about CIV is spreading that it may reignite sentiments of fear surrounding USCIS operations, InfoPass appointments, and other key elements of the relationship between USCIS and the community of immigrants it serves.

You can see USCIS’s announcement of CIV here. A stakeholder engagement is scheduled for Tuesday, April 16 and registration goes through this portal.

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Visa Bulletin advances, opens door closed since 2001

A technical but important event occurred earlier this month when the upcoming April 2013 Visa Bulletin was released. For many Central Americans who have been waiting patiently since 2001 for the opportunity to gain lawful immigration status, the release of this document has unlocked a door that has been closed to them for over a decade.

Some of our readers may be familiar with adjustment of status under Section 245(i) of the Immigration and Nationality Act. Section 245(i) is important because it offers an alternate path to adjustment of status (“fixing your papers within the USA”) even if the applicant entered the country without permission, even if s/he worked without authorization, and even s/he entered with a visa which s/he overstayed or violated.

Section 245(i) was created in the 1990s but many potential applicants did not take advantage of it. The window for using this process was extended in the late days of the Clinton administration and included a filing deadline of April 30, 2001. Applicants pay a fine of $1,000 in order to utilize this alternate process, but they (like all visa applicants) must wait for a visa to become available.

That wait is not insignificant — it can take years and years, even ten, 15, or 20 years for a visa to be made available. In fact, what makes the April 2013 Visa Bulletin significant is that it reflects the first time* that the F-4 category (visas through U.S. citizen siblings) has been available to countries such as El Salvador, Guatemala, Honduras, and others for applicants with the filing date of April 30, 2001.

The largest group of undocumented immigrants — from Mexico — still have a long wait before that fabled period of early 2001 reaches current visa availability. Mexico’s visa line is still so far backlogged that visas in the F-4 category are only available for applicants who filed prior to September 1, 1996. You can review the April 2013 Visa Bulletin here.

When our conversation centers on the requirement that undocumented individuals “get in the back of the line,” it is important to remember what that means. For thousands of long-patient applicants from Central America, the back of the line has finally reached fruition.

* A note: visa availability for these categories actually came available in late 2010 but quickly retrogressed because the Department of State realized that it had moved the line forward to aggressively. Most individuals who filed for their visas during this period had their cases processed and then held in abeyance. Approval notices and interview notices for eligible cases on hold from this period are being issued now.

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Oscar goes to “Inocente,” keeping immigration in center stage

The Academy of Motion Picture Arts and Sciences tonight recognized the film “Inocente,” a fearless documentary about a 15-year-old undocumented girl living in Los Angeles who copes with homelessness, her immigration status, family turmoil, and the challenges of adolescence all at once.

In winning the “Oscar” for Best Documentary Short, the film has not only validated the hard work and creative talent of its creators but also the trying experience of Inocente Izucar and hundreds of thousands of young women like her whose lives are shaped by federal laws and migration forces that are beyond their control.

Although policies like Deferred Action for Childhood Arrivals (DACA) have helped to empower this class of young people so they can come out of the shadows and live a semblance of a normal life, much work remains to be done to pass legislation like the DREAM Act or comprehensive immigration reform that would legalize the status of and offer a path to citizenship to millions of unauthorized immigrants.

 

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In Obama’s latest CIR proposal, observers see politics as usual

Over the weekend draft legislation to implement comprehensive immigration reform “leaked” from the White House, ostensibly tipping the hand of the recently re-inaugurated president as Congress begins to tackle a massive and massively controversial issue. Sen. Marco Rubio (R-FL) and other Republican spokespersons immediately denounced the proposal as unrealistic and partisan, but it was harder to tell what lines of distinction could be drawn between competing proposals. But some observers aren’t buying that story line and argue instead that this is just part of the political theatre needed to secure passage of CIR.

A condensed version of this theory is as follows: in the wake of the 2012 elections there is bipartisan agreement that immigration reform must move forward, but anything that appears to belong to President Obama is anathema to certain political elements on the political Right. Also while mainstream Republicans may support CIR their most conservative supporters may not tolerate a path to citizenship for those who are presently in the country without permission. Therefore the agenda of CIR can be advanced best by having the president float a proposal so these political elements can denounce it and replace it with other legislation that ultimately prevails.

It is an intriguing way to frame this discussion, and it is a theory that seems to be on the minds of some of Washington’s savviest observers. It also ascribes an impressive leadership quality to the president: that he would be willing to draw political fire on a proposal with his own name on it in order to clear the way for others to reach consensus and then propose a “middle of the road” proposal as antithesis to the president’s plan.

Overall the debate has hardly shifted: leading proposals are that, contingent on “increased border security,” a path to citizenship will be opened to some 11 million undocumented individuals by means of a combination of speeding up existing visa waits and issuing pre-Permanent Resident visas (possibly to be called Lawful Prospective Immigrant status) for a period of years. Additionally the employment-based immigration system would be overhauled to create more high-skill visas and a functioning guest worker program.

We’ll have to see how this debate unfolds. There are whispers that legislation may be on the table as early as early March.

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