Comprehensive Immigration Reform

On April 17, the bipartisan “Gang of Eight” introduced a Comprehensive Immigration Reform bill (S.744) in the U.S. Senate. Since then, the Senate Judiciary Committee has held two public hearings on the bill.

The bill is 844 pages in length, and in addition to providing a Pathway to Citizenship to 11 million undocumented persons, it would overhaul the way foreign-born individuals qualify for green cards through employment and through their family members who are U.S. citizens or permanent residents.

This article summarizes the proposed changes to the law in each of the following three areas. For a more in-depth look at: (1) the Pathway to Citizenship; (2) Changes in the Employment-Based System; and (3) Changes in the Family-Based System, please see our blog posts about these issues and our English and Spanish videos about the Pathway to Citizenship.

Bear in mind that there is no new law at this time. The bill is only a proposal which may be amended numerous times. If S.744 passes the Senate in June or July, a similar bill will be debated and voted upon in the House of Representatives. If different versions of Comprehensive Immigration Reform legislation pass both chambers of Congress, the two bills must be reconciled, and the final bill must then be signed by the President.

Senators will begin a substantive mark-up of the bill on May 6, the day after the Senate returns from a week-long recess.

We will report on progress of these bills on a monthly basis in our newsletter, and on a daily basis on both our website, and on our Facebook and Google Plus pages.

Pathway to Citizenship: RPI Status
S.744 would allow certain undocumented persons who were present in the U.S. on December 31, 2011 to apply to become Registered Provisional Immigrants (RPIs). RPI status would allow them to obtain work and travel permits, but would not allow them to apply for green cards or U.S. citizenship for many years.

To achieve RPI status, they would have to pay back taxes, undergo background checks, have no serious criminal convictions, and pay a $500 fine as well as a filing fee.

RPI status would expire in 6 years, and would have to be renewed by undergoing background checks and paying another $500 fine plus filing fees.

Only after a person accumulates 10 years in RPI status, if otherwise eligible, they can apply for a green card again by paying the required filing fees plus a fine of $1,000.

Three years later, they would be eligible to apply for naturalization.

For certain groups like DREAMers, DACA grantees and Agricultural workers, the process would be expedited somewhat. They would be able to apply for green cards after 5 years in RPI status, and for naturalization immediately thereafter.

Employment-Based Immigration
S.744 would reform and expand the existing employment-based (EB) preference system. Although the official quota for EB green cards would remain at 140,000 per year, in reality, this amount would increase tremendously.

First, all unused EB green cards for the past 20+ years, would be “recaptured” and would be added to the 140,000 immediately.

Second, the per-country quota of 7% would be abolished, thereby allowing many thousands of persons born in India and the PRC to qualify for green cards.

Third, a large portion of the persons currently subject to numerical limits would be exempted from the 140,000 cap. These include spouses and children who are derivative beneficiaries of EB workers; all persons qualifying under the EB-1 category (extraordinary ability, outstanding professors and researchers and multinational executives and managers); persons holding a doctorate degree in any field; certain physicians; and certain persons with advanced degrees in STEM fields from U.S. universities.

Fourth, a merit-based points system would be created for 120,000 to 250,000 persons per year.

Other changes in both the EB preference system and in the employment-based temporary visa categories are equally exciting and we will detail them in future blog posts and newsletters. For example, the H-1B cap would be raised substantially, and a new W nonimmigrant category for temporary workers and a new X category for entrepreneurs would be created. STEM professionals would be more easily able to self-petition for green cards using National Interest Waivers rather than having their employers undergo the PERM process.

Family-Based Immigration
Although the general trend in S.744 is to favor EB workers over family-based immigrants, nevertheless there are considerable improvements proposed for the family-based categories.

One highlight of the bill is that, for the first time, spouses and children of permanent residents would become “immediate relatives” and would no longer be subject to quota restrictions.

The per-country cap would be raised from 7% to 15%, which would significantly reduce the waiting times for relatives from Mexico and the Philippines.

Also, immediate relatives would finally be able to immigrate together with other family members, so-called “derivative beneficiaries”. Say that an adult U.S. citizen wishes to sponsor his parents and his 15 year-old sister for green cards. Under current law, his parents could immigrate in a matter of months while the wait for the sister would be measured in decades, thus separating members of the immediate family. Under S.744, the sister would be able to immigrate at the same time as her parents.

In addition, certain family members who are beneficiaries of approved family-based petitions would be able to obtain V visas to join their families in the U.S. while waiting for their green cards.

The definitions of both stepchildren and adopted children would be liberalized in order to prevent the separation of families.

The bill would effectively overrule the Board’s Immigration Appeals’ unfortunate decision relating to the Child Status Protection Act (CSPA) in Matter of Wang. As we have been arguing in the Federal Courts, Congress intends that aged-out sons and daughters of permanent residents be able to “automatically convert” to the 2B family-based category and to “retain” the priority date of the original petition, be it family-based or employment-based.

S.744 would restrict or abolish certain categories of immigrants. The Diversity Visa lottery would be abolished after fiscal year 2014, and no new I-130 petitions for the FB-4 category (brothers and sisters of U.S. citizens) would be accepted starting 18 months after the passage of the law. The FB-3 category (married sons and daughters of U.S. citizens) would be restricted to include petitions where the son/daughter is 30 years of age or younger.

With these proposed changes on the horizon, it is important that family members petition for these relatives now before the law changes in order to “grandfather” them into the existing system.

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