PLEASE NOTE – each and every clause of the new bill is NOT discussed below – this summary is of the clauses that I thought were relevant and important to my practice and my client base. Please refer to an attorney for more details. Note that the Bill as it exists has NOT passed, and therefore it is NOT law. Current law applies and controls till this Bill passes and is signed by the President, making it law. Thereafter, the DHS has one year to issue regulations to implement the law. So, if the Bill passes, it will still be some time for any changes to take place. Remember: “The Devil is in the Details”. Also please listen to my Radio broadcast discussing the Bill, which aired on March 2, 2021 on WAKR, 1590 AM, in Akron, Ohio. https://youtu.be/Y4sdrroN_qg
The Bill has been Introduced in the house and the senate – 353 pages – and is currently pending review, markup, debate and vote in both chambers. If it passes, it will head to President Biden for signature.
No longer aliens/illegal-will be called “non-citizens”
New procedures to encourage people coming out of the shadows with safeguards:
Title pretty much summarizes it: “Earned Path to Citizenship and Other reforms”
SO – IT IS NOT AMNESTY
Creates a new “Lawful Prospective Immigrant Status”
Adjustment of Status of LPI’s
LPI for 6-year term; can seek Adjustment of Status (Green Card) in 5 years, if pays all taxes, has been LPI for at least 5 years, passes background checks, files forms and pays fees.
As you can see – there is no “amnesty”.
The Dream Act
DACA – Dreamers will also be eligible to adjust status – as will be their spouses and non-USC children – again similar requirements as above – PLUS – males must register for Selective Service unless compelling circumstances.
Adjustment of Status under the American Promise Act for non-citizens under TPS and DED
Requires physical presence, since 1/1/2017, applications, background checks, etc. Spouses and children can be included
Clarifies that TPS recipients are considered “inspected and admitted to the US” under Section 244(f)(4). This provision codifies what a couple of circuit courts have held and makes it possible for TPS recipients to adjust status.
Agricultural Workers Adjustment Act
At least 400 work days in the last 5 year period; file form, applications, fees, pass background checks. Spouses and children eligible to adjust as well.
Detailed Adjustment of Status process and requirements
Exclusions from Adjustment if Felony conviction or 3+ misdemeanors (BUT marijuana possession does not count)
Encourage coming out of the shadows: information in an application CANNOT be used for enforcement purposes.
Old “V” visas revived for long pending applications for spouses and children of LPR’s
On the criminal front: Changes the definition of “conviction” – The definition of “conviction” for immigration purposes is changed to no longer include any adjudication or judgement of guilt that has been dismissed, expunged, deferred, annulled, invalidated, withheld or vacated.
Also brings back the power of judicial recommendation against deportation (“J-RAD”) which had been stripped from state and federal judges.
Expands the Petty Offense exception to TWO offenses if the max penalty did not exceed 1 year and the actual sentence was less than 180 days
The Act brings into the forefront an old BIA case called “Matter of Marin”, by creating a waiver from inadmissibility or removability similar to the old 212(c) waiver which existed prior to the IIRIRA. It is for “Humanitarian, family unity and public interest”.
Judicial review expanded – to US District courts as well – rolls back provisions of IIRIRA and Real ID
Reduced from 5 years to 3 years of LPR status if in the 3 years prior to LPR status the noncitizen was both eligible for employment authorized and lawfully present in the USA.
DHS/Government is limited from taking private lands for immigration purposes (ie, Border wall).
Cutting off migration at source:
– ADDRESSING THE ROOT CAUSES OF MIGRATION AND RESPONSIBILY MANAGING THE SOUTHERN BORDER
4 year program by US Department of State: “US Strategy for Engagement in Central America”. DOS to coordinate with other agencies as required.
How will the US do that?
Combating corruption, strengthening the rule of law and consolidating democratic governance
Combating Criminal Violence and improving citizen security
Combating Sexual, Gender-based and Domestic violence
Tackling extreme poverty and Advancing Economic development
How much money allocated to this project: $ 1 Billion per year, authorized for FY 2022 – FY 2025
Refugees and asylees:
Expanding refugee processing in the Western Hemisphere
Strengthening regional humanitarian responses
Setting up Designated Processing Centers – at least one each in El Salvador, Guatemala, Honduras and any other country that the DOS considers appropriate.
Such centers will register and process refugee claims in-country.
Reopens the Central American Minors Program.
Tightening up CBP and DHS responsibility for illegal actions or use of force. CBP will have to set up an Office of Professional Responsibility with a ratio of 30 officers to 1 investigative officer.
Improving border infrastructure; cracking down on criminal organizations.
Humanitarian and medical standards for individuals in CBP custody – food, sleep, hygiene, water, sanitation.
Child welfare at the Border – “best interests of the child.”
Enhanced protections for USA: additional crimes and enforcement for human traffickers, smugglers, destruction of govt property, transnational crime.
Immigrant visa family system:
Freeing up more Family Based immigrant visas – effectively now back to the statutory limit of 480,000 per year – this will reduce backlogs considerably!
Major changes – Spouses and children of Permanent Residents are now considered “Immediate relatives” – this reduces and alleviates the pain of families separated for years.
Huge allocation for Brothers/Sisters of US Citizens – hopefully will alleviate the backlog in this category.
Employment based Immigrant visas:
Although the bill calls for increase from the current miserly 140,000 per year, this is increased only to 170,000 per year.
Congress missed the chance to increase this once and for all, perhaps pegging both the Family-and-Employment based immigrant visa quotas to the population. The limits were placed in 1965, when the current Immigration and Nationality Act was passed. Though many changes have been made by subsequent law, these numerical limits were never increased. In 1965, the US population was 194.3 million. Today it is 331 million, or an increase of 58%. Thus, those immigrant visa number should be increased by at least that percentage, with a concurrent increase pegged annually to the US population.
Family Based immigrant visas should be increased, therefore, from the current 480,000 to 758,000
Employment Based immigrant visas should be increased from the current 140,000 to 221,000.
The current proposed increases are woefully inadequate. [end comment]
Permanent Partners are recognized for the first time in immigration law.
Consequently, children of Permanent Partners are recognized as such till the age of 18, and if adopted, till the age of 16.
Limits on executive authority:
Limiting unbridled authority to suspend or restrict entry of a class of non-citizens (example the “Muslim Ban”)
Diversity visas increased from 55,000 to 80,000 per fiscal year.
More changes proposed to Employment-based immigration in addition to those discussed above:
Purpose: Trying to ease up and free up the system so that noncitizens do not have to wait for decades for immigrant visa numbers to become “current”.
STEM doctoral candidates NOT subject to visa caps anymore
Noncitizens with applications which have priority dates greater than 10 years are not subject to the numerical limits.
Eliminate the per-country limits.
Codify dual intent for F-1 students as well.
H-4 children can extend their status past age 21 and all H-4 spouses and children are eligible for EAD cards.
Automatic F, H-1b, L or O non-immigrant visa extensions in 1 year increments as long as PERM or IV application pending for one year or more.
Creating and funding the US Citizenship and Integration Foundation, to be operational within 1 year of the Bill becoming law. Will solicit donations and issue grants for literacy, adult English education, Citizenship education, and applications through various legalization programs (as described above) – [new Sections 245B – C – D- E- F-]. USCIS will provide $ 50 Million to non-profits which will assist applicants in these programs.
Encouraging college education:
In-state tuition rates for Refugees, Asylees, and Special immigrants – else non-compliant states will lose assistance under the Higher Education Act of 1965.
Reducing Immigration Court Backlogs:
Hiring 55 new judges each year in FY 2021 through 2024
Hiring at least 23 new BIA staff attorneys in FY 2021, 2022 and 2023.
Increased and improved training for Immigration Judges and BIA Board members
New Technology to increase efficiency, including e-filing
Possible court-appointed (ie, Tax-Payer funded) access to legal counsel for non-citizens
Open file disclosure of government evidence to respondents
Rules to be established within 180 days of enactment.
Educating non-citizen children:
School districts will receive additional grants to help educate non-citizen children including Unaccompanied Minors – schools must actively help in such student’s enrollment and participation.
Repeal 1 year rule (ie, file for asylum within 1 year of entry to the USA).
Employment Authorization granted for the duration of the entire case, including appeals. Max 180 day wait from filing the application.
Increase annual cap from 10,000 to 30,000
Relief for Special categories of immigrants:
Afghan, Iraqi translators, Syrian nationals who worked for the US
Various forms of relief including relief for family members, amount of time of qualifying service, etc.
Protecting Non-Citizen employees in the USA:
Various protections including right to consult and provide witness to DOL and related agencies for purposes of workplace enforcement, grant of U visas to cooperating noncitizens; no removal from the USA for noncitizens who are material to or cooperating in the prosecution or investigation of illegal activity.
Preventing discrimination based on National Origin or Citizenship status (EEOC)
Fairness to farmworkers – reduction in workweek from max 55 on 1/1/2022 to 45 by 1/1/2024.
Enhanced penalties for workplace exploitation, funded by a new “Labor Law Enforcement Fund”.
Paperwork: May actually be reduced – for example, families may be able to file together, on one application.
When will this bill go into effect?
If the bill passes both the house and Senate and is reconciled, and then President Biden signs it into law, the Act requires that the DHS publish final rules within one year of passage.
© Farhad Sethna, Attorney, 2021
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.