IMMIGRATION REFORM
SENATE PROPOSALS
September 2010
Comprehensive Immigration Reform Act of 2010 – Proposed – Senate Bill 3932
On September 29, 2010, Senators Menendez (NJ) and Leahy (VT) introduced the Comprehensive Immigration Reform Act of 2010, (S. 3932) which is beneficial to many immigrants in the United States. The new proposal establishes greater enforcement, but more importantly for many of our readers, again a program to legalize all persons in the US, including the provisions of the DREAM Act.
This article provides a summary of the proposed legislation, based on initial filings of the proposed legislation, and should be used only as a guide to the proposals. Details of the proposals will be revealed in the next few months. I encourage you to call your Senator and Congressman and express your support of the legislation and immigration reform.
LEGALIZATION PROGRAM
Most importantly, the proposed legislation would create a national legalization program to provide a process by which individuals could apply for permanent residency in the US, even if they are here illegally.
Specifically, the bill creates a special status – Lawful Prospective Immigrant (LPI) – which is available to all persons who were physically in the US on 9/30/2010, who register, never committed a crime, submit biometric data, undergo background checks, and pay a fee. LPI would also apply to individuals in proceedings before an Immigration Judge. LPI individuals would be eligible to work and travel.
LPI status would last for 4 years, and would also be provided to the family and children of the applicant, even if they are living abroad. LPI status may be revoked if the applicant remains outside of the US for 6 months or greater. LPIs would be permitted to correct social security records without fear of penalties or retribution.
ADJUSTMENT OF STATUS FOR LPIs
After 6 years in LPI status, (but no sooner than 8 years after this law is enacted) an applicant can apply for Lawful Permanent Resident (LPR) status provided that they pass security and background checks, basic citizenship and English tests, pay all taxes, comply with Selective Service Registration, and pay a $1,000 fee and processing costs. The number of LPRs granted under this program would not affect annual visa limitations.
OTHER BENEFITS OF THE LAW
The bill would eliminate the wait now required for workers with approved labor certifications who had been waiting for visa number availability. The proposed bill would also individuals to return to their home country for 2 years if their home country needs talent to help rebuild after a natural disaster or conflict.
The bill would allow students to enter the US even if they intend to eventually immigrate to the US.
The proposed bill would also allow for “permanent partners” to apply for adjustment of status, thus allowing same sex partners to be sponsored just as traditional couples are allowed to currently adjust their status.
The proposal reclassifies spouse and minor children of permanent residents as immediate relatives that permit them to adjust their status immediately instead of waiting years. The proposal would also increase per country limitations on immigration and eliminate employment based caps. The proposal revises the now existing 3 and 10 year bars for readmission to persons who are in the US unlawfully and leave the country. The new proposal is for a 3 year bar to those individuals who are unlawfully present in the US for greater than 1 year and leave the country.
The bill also reduces the requirement of sponsors to provide support at 100% of the poverty level instead of the current 125%.
INCREASED ENFORCEMENT
As we have seen in previous legislation, this proposal also increases enforcement. Specifically, the proposal calls for increased agents in Immigration and Customs Enforcement, Customs and Border Protection, and additional attorneys and Immigration Judges. The proposal also calls for increased border security.
The legislation mandates the use of “US VISIT” a program designed to note the departure of persons as they leave the US.
The legislation increases civil penalties for entering the US illegally and a penalty for illegal reentry of up to 25 years in prison. The proposal also increases penalties for passport, immigration and visa fraud. Interestingly, the bill prohibits permanent residents (green card holders) from buying firearms or engaging in commerce related to firearms.
The proposal also outlines procedures for detention and requires ICE to establish national standards, and improve detention conditions.
NATIONAL EMPLOYMENT VERIFICATION
The legislation establishes a mandatory national employment system to be implemented over the next 5 years. Employers would be required to establish that each of their employees must pass the verification system.
CONCLUSION
The proposed legislation is an important step in the right direction, and includes many provisions similar to the REPAIR immigration proposals filed earlier in Congress as bills which are supported by the President. Given the constant changes proposed, it appears that Congress will move towards immigration reform. For the millions of persons in the US who are awaiting these proposals, hopefully change and passage of the laws will come soon. If you are a Citizen or Permanent Resident, call your Congressman and Senator and express your support of immigration reform and these reform proposals so that they will eventually become law.
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IMMIGRATION REFORM BATTLE HEIGHTENS
Real Enforcement with Practical Answers for Immigration Reform (REPAIR)
Senators Outline Key Issues in New Legislation
Several prominent US Senators (Reid, Durbin, Schumer, Leahy, Feinstein, and Menendez) recently announced the REPAIR proposal a “framework of concrete bipartisan ideas” for immigration reform. Many of these reforms are similar to proposals suggested by Congressman Gutierrez in December. Especially promising is President Obama's recent statement that the proposed reforms are a "very important" step in the process of fixing the immigration System which is often misguided and varies in application
Most importantly, the proposals:
- Establish a path to legalizing status for illegals including the granting of work authorizations, and ability to travel
- Speed up the processing for applicants for permanent residency under labor certifications or family based petitions.
- Enact the DREAM Act providing for the legalization of students who completed high school in the US and either 2 years of college or served in the US military.
- Excuse illegal entries of individuals into the US
- Provide automatic permanent residency for persons who complete college studies in America
This article will summarize the new proposals for persons who are currently applying for permanent residency, and those who plan on applying for permanent residency, but have not done so yet.
EFFECT FOR LABOR CERTIFICATION APPLICANTS
For persons who filed for labor certification already, the proposal creates a Commission on Employment‐Based Immigration to recommend ways to promote growth and protect American workers. Given this situation, it is important for those wanting to apply for permanent residency through labor certification to do so quickly, before such a Commission can change rules or procedures.
EFFECT FOR PETITION BY FAMILY MEMBER APPLICANTS
For families, the proposal will clear the current petition backlog over an eight (8) year period. After the eight years, limitations will return. A major change would be that under the new law, spouses and children of lawful permanent residents (LPR) will be classified as “immediate relatives” permitting them to obtain work authorization very quickly, as opposed to having to wait years. The proposals include many other provisions including offering special protection for children and people with 0humanitarian considerations; stepchildren and adoptive children.
FOR THOSE HERE ILLEGALLY - A PATH TO PERMANENT RESIDENCY IN 2 PHASES
PHASE 1 - REGISTRATION - WORK AUTHORIZATION - TRAVEL BENEFITS
In Phase I all undocumented persons would register through a very detailed identity, criminal background and security screening, fingerprinting check. All applicants would have to pay fees. Upon registration, they will be considered for eligibility for a new status: “Lawful Prospective Immigrant” (LPI). In addition to the above, undocumented persons must remain in the country. LPI registrants may apply for a new biometric Social Security card and authorization to work and travel outside the US. Spouses and minor children living abroad will be eligible for legalization once their relative receives LPI status.
Anyone found ineligible for registration will be subject to deportation. Those who fail to register will remain undocumented and be subject to arrest and deportation. Persons who would not be eligible include those who are:
1) Convicted of three or more misdemeanors or any felony punishable with a prison term of more than one year;
2) those who engaged in persecution of others;
3) those “inadmissible” for national security and criminal grounds;
4) those in the country in an “authorized immigrant or nonimmigrant status”; and
5) those who entered illegally after the bill’s introduction date.
PHASE 2 - THE GOOD NEWS - LEGALIZATION
Phase II begins eight years after enactment when current visa backlogs are cleared. At that time, LPIs (those registered in the program per Phase 1 above) will be permitted to petition for adjustment to Lawful Permanent Resident (LPR) status. Requirements for eligibility include:
1) Demonstrating basic citizenship skills,
2) Ability to communicate in English,
3) Continuous residence in the United States;
4) Additional background and security checks;
5) Payment of all taxes, fees and civil penalties; and
6) Registration - Selective Service (for Men 18-26 yrs old).
ADDITIONAL POINTS OF THE LEGISLATION
Among the proposals also call for making significant changes to the Immigration System including ,
- Establishing a new program to provide visas to promote property ownership by foreign nationals.
- Improving the R‐1 religious worker visa.
- Creating new paths for nurses and physical therapists to enter the US
- Establishes a program to assist persons with limited English proficiency in state court proceedings
- Creates a nationwide integration program.
- Creates commissions to review the U.S. government’s past treatment of various European Americans
- Institutes a new system to verify employment, ending illegal employment
- Ensures American workers are protected
- Requires mandatory registration, and Administration of Punishment for Unauthorized Aliens
- Institutes reforms to Enhance Efficiency and Effectiveness in America’s Immigration System
MAXIMIZING AMERICAS ECONOMY - HIGH SKILLED IMMIGRATION - AUTOMATIC GREEN CARDS
The proposal provides for an immediate green card (permanent residency) to foreign students with an advanced degree from a U.S. institution of higher education in the field of science, technology, engineering or mathematics, and who have an offer of employment in the field related to their degree, from a U.S. employer. The proposal would also eliminate per country employment limits.
INCREASE OF IMMIGRATION ENFORCEMENT
The new proposals would increase the role of US Customs and Border Patrol and Immigration and Customs Enforcement Agents including worksite enforcement inspectors; and ICE document fraud detection officers. These increased personnel would be used to inspect for drugs, contraband and illegal immigrants. They would also be used to stop unauthorized border crossings.
The proposal increases the capacity to identify, detain, and remove individuals who entered unlawfully or overstayed temporary visas. It will also implement an entry‐exit system to monitor overstays, including full deployment of the US‐VISIT screening system at ports of entry. The proposal increases screening of criminals in federal state and local prisons for immigration status. The Visa Waiver Program (VWP) will be more closely evaluated and monitored, and VWP will be suspended for countries with high overstay rates.
In response to the developments in Arizona and misapplication of cooperation between local police departments and Immigration, the new legislation states that once complete border control is established, state and local governments will be barred from enacting their own immigration laws.
Important for many relatives who enter the US and are refused entry, the proposals establish alternatives to detention and custody standards at border stations.
DETENTION AND REMOVAL OF ILLEGAL PERSONS AFTER THE LAW IS ENACTED
In order to prevent future illegal immigration, the proposals have heightened measures against illegal entry. The proposal creates new crimes for passport fraud, passport trafficking, and other document fraud, and also increases the immigration consequences for fraud and misrepresentation. There are also severe penalties proposed for those who are ordered deported and do not leave.
The proposal will establish uniform standards governing when individuals must be detained. Also, the proposal requires the enactment of and compliance with minimum detention facility standards and prevents the transfer of detainees away from their children.
The proposal imposes penalties, including civil and criminal sanctions, on unscrupulous employers who exploit unauthorized labor and offers incentives to victims of labor exploitation for cooperating with law enforcement actions against employers.
VERIFYING EMPLOYMENT - STRICT NEW RULES
The proposal establishes a new biometric identification and employment verification system to prevent the employment of unauthorized workers.
Employers must verify employability with the new system. The proposal will impose civil fines upon employers that engage in unfair immigration‐related employment practices.
Knowing violations of the employment verification system, such as employment of an unauthorized worker will carry larger civil fines. The proposal allows for mitigation of penalties for small employers or those acting in good faith, as well as safe harbor provisions for employers who employ unauthorized workers through a subcontractor. Employers who hire unauthorized workers will be prohibited from deducting their wages.
CONCLUSION
The proposals provide for a logical fair approach to improving our immigration system. As President Obama stated recently, the time for this reform is now. We look forward to keeping you advised to developments of these proposals and how they are actually being proposed into law and acted upon. If you have any questions, feel free to make an appointment so that you can best prepare yourself for whatever new legislation is enacted.
