Getting Ready for Immigration Reform
The Senate’s recent immigration reform bill, Border Security Economic Opportunity Immigration Modernization Act 2013 (BSEOIMA), released yesterday, is far from being a done deal. There is still much that needs to happen before immigration reform becomes a reality. Nevertheless, it appears that the prospects for reform to finally materialize are excellent. Now is a great time for those who may benefit to start getting ready.
Here is a very brief recap of what the Senate’s proposed immigration reform bill, the Border Security Economic Opportunity Immigration Modernization Act 2013 (BSEOIMA) proposes to do:
• Border Security Requirements: The Senate is requiring DHS to quantify its success rate on removals and apprehensions, essentially forcing it to be accountable for producing meaningful results. It appropriates funding for more border fences, technology for tracking overstays in the country, and more DHS personnel.
• Legalization: The bill allows foreign nationals who are undocumented or who overstayed to obtain legal permanent residence and ultimately citizenship. There are certain requirements, such as having been in the U.S. since no later than December 31, 2011, and disqualifiers, such as serious crimes. Those previously deported for other than criminal grounds may be allowed to apply from outside the U.S. if they otherwise qualify. The new name for this process is Registered Provisional Immigrant Status (RPIs).
• DREAMers:There are also carve-outs for DREAM Act eligible childhood arrivals. Dreamers will have a faster route to citizenship. The age restriction for DREAMers is removed.
• Family Categories: Siblings of U.S. citizens will no longer qualify for immigrant visas. The other family preference categories will be re-prioritized, for examplespouses and children of Legal Permanent Residents will be immediate relatives under the Senate proposal.Also, there will be a 31 year age cap for eligibility of married sons and daughters of U.S. citizens, and the V visa will return.
• Removals and Deportations: These will continue but immigration judges will have more discretion to not deport an individual where the U.S. citizen or Lawful Permanent Resident Spouse, children, or parents will suffer hardship. The law now requires “extreme and exceptionally unusual hardship.”
• Due process and Human Rights Protections: Provides for appointed counsel for unaccompanied immigrant children and mentally ill individuals in deportation proceedings, strengthens human rights protections for immigrants in detention, and vastly expands access to legal orientation programs for detained immigrants.
• Waivers for Grounds of Inadmissibility: The Senate Bill will also change the present requirement of showing“extreme and exceptionally unusual hardship” to a U.S. citizen or Lawful Permanent Resident Spouse, or parent to “hardship” to a U.S. citizen or Lawful Permanent Resident Spouse, children, or parent.
• Diversity Lottery Eliminated: This program would be repealed almost immediately.
• Innovation and Competitiveness: Doctoral Degree holders in any field will receive unlimited limits on immigrant visas. Provisions have been made for STEM graduates with a doctoral and master’s degrees. Start-up founders will also receive a special carve-out visa.
• Implementation of Merit-Based Visas System: The system would award points based on education levels, employment, and length of residence in the U.S. and family connections.
• Mandatory E-Verify: Everyone saw this coming. The bill proposes more refinements to the system to reduce identity theft and document fraud. Depending on the number of employees, employers will have anywhere between 3-4 years to enroll in and implement the system.
• Increase in H-1B Visas with Restrictions: H-1B visas will be increased but the requirements will be more stringent.
• Guest Worker “W” Visa: This provision comes straight from the AFL-CIO and U.S. Chamber of Commerce agreement and will allow numbers of guest workers to enter the U.S. The number will be determined by market conditions. Guest workers will be allowed to apply for Lawful Permanent Resident status.
• Asylum:The one-year filing deadline is eliminated and asylum officers will be authorized to grant asylum during credible fear interviews.
• “Notarios” and Fraud:The Senate proposal will make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. It will also require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous "immigration service provider" at the federal level.
The bill will likely undergo many rounds of amendments. Even if it were to survive committee review and gain passage in the Senate, the bill must survive the House of Representatives. The fact that we can even write about an immigration proposal today is a feat in itself.
Below are a few simple suggestions that will help you get ready.
Getting ready should start with taking an inventory of the documents that you have and those that you will need to obtain. Everyone will need to prove who they are with a birth record or certificate. It is best if it is an original with all the proper certifications and seals. Marital status can be proved by marriage and divorce certificates. Proving how and when you came to the U.S. (the Senate bill requires entry no later than December 31, 2011) is best accomplished with a passport, an I-94 (Arrival – Departure record), however, other documents may be used as well (i.e., a boarding pass, airline tickets, etc.). Tax returns will be required. If one does not have these a tax transcript can be obtained directly from the IRS. Those that have an immigration history (i.e., deportation, removal, denied petitions, etc.) should get a complete copy of the immigration file. This can be accomplished via a Freedom Of Information Act (FOIA) request. Most importantly, those who have been arrested will need a certified copy of the disposition for each arrest. If there is a felony conviction on your record or 3 or more misdemeanors (excluding traffic or immigration related offenses) now is the time to talk to a criminal lawyer about vacating (not expunging) the conviction.
Stay tuned for more updates on this blog.
Written by: Roberto Gonzalez