Tag Archives: CIR

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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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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Alien smuggling could be barrier to new family unity waivers

We previously shared some initial thoughts on the “Gang of 8” U.S. Senators who unveiled a framework for comprehensive immigration reform (CIR). Most observers know that in the days since both President Obama and the House of Representatives have identified their own starting points for such a discussion. The national debate is taking shape with hearings and many major issues remain up in the air. It will be an exciting and important few months to come.

In the meantime, immigrant families and the advocates who try to shepherd them safely through a complex and often changing web of immigration laws are digesting what new policies such as Deferred Action for Childhood Arrivals (DACA) and the new Provisional Unlawful Presence Waiver (PUPW) have in store. These policies will matter in the interim and if CIR again comes up short this time around these policies will remain some of the most important tools in practitioners’ toolboxes.

One major disappointment of the Final Rule on PUPW was the administration’s decision to not permit individuals with inadmissibilty other than that arising from § 212(a)(9)(B) to utilize the new I-601A process. Our program and clients submitted two hundred comments among several thousand and advocated for consideration of waivers for other grounds of inadmissibility. This seemed fair because most waivers share the “extreme hardship” standard for overcoming § 212(a)(9)(B) or even use a lower standard of proof such as “family unity”; therefore a case that passes muster for waiving unlawful presence inadmissibility should also suffice for other problems.

It would have been understandable for USCIS to draw a line between unlawful presence (a relatively innocent inadmissibilty) and inadmissibility based on fraud or criminal convictions. But instead USCIS chose to draw a single, bold line with unlawful presence on one side and everything else on the other. Therein lies the problem.

Drawing from anecdotal experience, USCIS has recently ratcheted up its screening for an often-overlooked ground of inadmissibility: § 212(a)(6)(E) for alien smuggling. While the words “alien smuggling” smack of human traffickers and hard-nosed coyotes who help unauthorized immigrants to cross the border, the definition also includes families that travel across the border together. Here’s the statutory language:

Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

This is a very broad definition of “alien smuggling” and the only exception is for certain individuals who were in the United States in 1988, prior to the passage of the Immigration Act of 1990. There is a waiver available, however. Here’s the relevant language:
 

[The government] may, in [its] discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of [the alien smuggling rule] in the case of [certain Permanent Residents] and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

That’s quite a mouthful. Here’s what it means: if you are seeking an immediate relative visa you can also seek a waiver (with a low hardship standard) if you are inadmissible for alien smuggling and the person who you helped enter was your spouse, parent, or son/daughter.

In practice, these waivers are something of a formality. In fact, this rule seemed to have been forgotten about until recently, and we have seen a spate of cases being flagged for potential alien smuggling. Even where the case is so flagged, the hardship standard is so easy in most cases that it just adds a short delay to the overall process.

But here’s the snag — § 212(a)(6)(E) inadmissibility is not § 212(a)(9)(B) inadmissibility, and therefore individuals who entered the U.S. without permission and brought with them spouses or minor children are not eligible for the new opportunities offered by the I-601A process. In our experience this is frequently the case, and it is disappointing to explain to a client that this new opportunity — which USCIS acknowledges is intended to help families remain together throughout the process — is just out of reach because of an old, historically overlooked rule.

We will keep an eye on this issue to see if it presents in practice the headaches that it promises in theory.

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Senators’ opening bid for Comprehensive Immigration Reform has echoes of past proposals

A day before President Barack Obama is slated to visit the Silver State and deliver a speech outlining principles for Comprehensive Immigration Reform (CIR), a group of U.S. Senators has unveiled its own set of general proposals. Although visible progress is a welcome sign to immigration advocates who thought they may have to wait until spring for any action, the details of what is being proposed are strongly reminiscent of past proposals that have not borne fruit.

Echoing all CIR proposals since 9/11, this one attempts to forge bipartisan compromise by tying any broad-based path to citizenship with “increased enforcement and border security.” Advocates of CIR have often asked in recent years what would satisfy this criterion if 400,000 deportations per year and a decade of constant year-over-year budget increases for enforcement are deemed to have not been enough.

Cheerleaders for CIR can find encouragement in the fact that the Senate is leading the way — although the political makeup of the Senate is arguably less conducive to passing a broad package of reforms, it also has higher procedural hurdles for advancing legislation. The most recent effort to pass immigration law reform — approval of the DREAM Act to offer relief to young undocumented immigrants — died in the Senate after failing to overcome a filibuster. Similarly advocates should be optimistic that broad principles are being introduced and a path to citizenship for all of the estimated 11-12 million aspiring citizens is on the table — some advocates had worried that only a piecemeal set of small reforms could pass both houses of Congress and that some groups might be left out. Finally, it is obvious that the political environment is different in 2013 than it was throughout President Obama’s first term: on this issue perhaps less so because he is a re-elected president who is seen as deserving to implement his mandate and more because the Republican Party desperately wants to make a viable bid for Latino votes in 2014 and beyond.

But the news is not all cheery when seen through a political handicappers eyes. First, the community of immigration advocates, aspiring citizens, and their families should know now that power players in Washington posturing toward a goal does not guarantee that said goal will be realized. The proposals being ballyhooed today are very similar to those put forth in prior Congresses dating back half a decade or more and changes in the electorate, where they have occurred, are arguably more stepwise than sweeping.

Some of the familiar ideas in this proposal include:

  • More border security including the use of drones to patrol the borders and a promise to provide Customs and Border Protection with the tools and resources it needs to “apprehend every unauthorized entrant;”
  • A path to Permanent Residence for aspiring citizens who pay fines and back taxes and pass a background check;
  • Expansion of high-skill work visas such as the tiny number in the H-1B category;
  • Provisions for an accelerated “alien entrepreneur” residency for job creators;
  • An improved system for employment authorization verification; and
  • Some form of guest worker program

Among the new approaches in this proposal are:

  • An explicit “enforcement-first” approach that would rely on approval from a new commission of governors rather than the usual rhetoric of “we have to secure the borders before we discuss legalization”; and
  • A new system for proactively tracking exits from the country to prevent overstays of temporary visas (one study finds that 38 to 50 percent of all unauthorized immigrants overstayed their visas).

Finally, there are a few potential poison pills in what is being proposed:

  • The enforcement-first approach is engineered to provide political cover for both sides if negotiations break down or bills fail to win approval — one political party can point to concerns over border security and the other can score political points by highlighting its rival’s intransigence;
  • We again see the notion that those currently out of status must “go to the back of the line,” but it is unclear precisely what is meant by this. For some visa categories (see the recent Visa Bulletin here) the “back of the line” is a far-flung place 16, 19, or even 23 years in the past.
  • Universal employment authorization — many observers say that to truly achieve robust, universal employment verification the U.S. would have to implement a national identification card that every authorized worker would bear. Such a proposal faces staunch opposition from civil liberties advocates from both ends of the political spectrum.
  • Ours is still a bicameral legislature, and any proposal must appeal not only to a handful of Republican Senators but also to enough Republicans in the House to make it to a vote and survive. The attitude that the Republican Party must moderate its policies if it is to survive is not one that is universally held.

All in all, we have this week signs of progress but nothing upon which to make firm plans or even friendly bets. President Obama will weigh in when he visits Las Vegas tomorrow and we will continue to keep an eye on these developments.

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