Two weeks ago, Vice President Biden said that he hopes that “Congress will show the wisdom to pass the bipartisan immigration bill by the end of the summer. They must, and I'm optimistic.” Like Vice President Biden, we are also anxious to see Congress pass immigration reform as soon as possible.
For the last two weeks, the Senate Judiciary Committee, the committee in charge of drafting and sending the immigration bill to the Senate floor, has been reviewing proposed amendments to the immigration bill. The process they are engaging in is known as a “mark-up,” a formal legislation revision process. Once the Judiciary Committee has finished reviewing and voting on the amendments, and after it approves the bill by unanimous consent, the committee will send the bill to the Senate floor for a vote.
The House, unfortunately, is a few steps behind the Senate. House negotiators only just reached a deal on their bipartisan immigration bill on May 16th. They hope to release their bill in early June. Once they release their bill, the House Judiciary Committee will go through the same amendment process that the Senate is now engaging in. After their amendment process is finished, the committee will vote on whether to place the bill on the House floor for a vote.
If both the House and the Senate are able to muster the votes to pass immigration reform legislation, House and Senate leaders can then participate in a formal conference committee during which the two houses will attempt to resolve legislative differences between the two versions of the bill. Once the bill is agreed to and signed by the leader of each house, the bill will then go to the President for his approval or veto. Then and only then will we finally be able to celebrate.
As you can see, there are many steps and potential obstacles to passing immigration reform legislation. However, despite the long wait ahead, we finally see a light at the end of the tunnel and will be ready to celebrate with our clients when the time comes!
Carly Stadum-Liang, Esq.
Family unification has long been the foundation of the U.S. legal immigration system. This reflects our American values of keeping families united and strong. The HMA Law Firm
therefore applauds the Senate's efforts to decrease the backlogs in the family-based immigration system. Current backlogs
keep U.S. citizen parents apart from their adult children for, on average, about seven years, and brothers and sisters of U.S. citizens apart for about 12 years. The bill proposes to eliminate, over 10 years, a backlog of 4.7 million immigrants who have been been waiting for their green cards based on their relationship to U.S. citizen relatives.
However, here at The HMA Law Firm
, we are concerned with the bill's proposal to eliminate the family-based visa category for siblings of U.S. citizens. The purpose of eliminating this category is to free up additional green card for other categories, including employment based green cards. The Senators proposing this legislation evidently think that the U.S. cannot increase employment-based immigration without decreasing family-based immigration. However, this is a wrong-headed notion, based on the faulty assumption that the U.S. can only absorb a fixed number of immigrants at a given time, even though, as history suggests, our nation's demand for immigrants is constantly in flux. Further the bill's writers seemed to have forgotten that family-based immigration supports the goals of employment-based immigration. Research
shows that “close family relationships facilitate entrepreneurship because family members can support in caring for children and working in family-based businesses.” Getting rid of the sibling visa category will reduce the amount of family support that U.S. citizen entrepreneurs need to successfully run their businesses.
The Senators working on the Senate immigration bill, called the “gang-of-eight,” do not need to make this false choice between increasing employment-based immigration or supporting continued family-based immigration. Instead, they can increase skilled, employment-based immigration, while at the same time maintaining the same family-based sibling category that has been proven to spur on entrepreneurship in immigrant communities. We hope that as the Senate Judiciary Committee
continues to make changes to its immigration bill, it will restore the sibling family based immigration category. It must do so to uphold our American values of fairness and inclusion. Carly Stadum-Liang, Esq.
today about Sen. Grassley using the horrific Boston Marathon attacks politically, saying the attacks show "it’s important for us to understand the gaps and loopholes in our immigration system."
"The bill does not shy away from addressing issues of national security and its ties to immigration regulations. As even Fox News reports, the bill addresses, "improved Visa tracking, securing U.S. borders, improving the employee verification system known as E-Verify and providing a path to citizenship." Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, said at a hearing, as a response: "I urge restraint in that regard … Let no one be so cruel as to try to use the heinous attacks of these two young men last week to derail the dreams and futures of millions of hard-working people." Robert Costa reports the "tweaking process could take months, which is just fine with many Republicans, who’d like the public to have as much time as possible to chew over the controversial elements of Obama’s prized bills. The caucus consensus is: The more time Congress takes to consider a bill, the more time the public has to sour on its components." It’s clear that attempts to try to slow down immigration reform based on these crises are part of greater political agendas.
What is more important is the vital need for immigration reform as soon as possible. The bill provides a vehicle for citizenship that is far from perfect: most estimate it would take about 13 years, and all provisions will be contingent upon strict regulation to make the good enforceable. However, the bill still is vital to better and stronger immigration policy.
Senator Chuck Shumer dressed Grassley down hard today for his comments on Thursday, and we can only hope that is an indication of how our conversations about immigration reform will progress. This bill is overdue, and we should not pander to those who look to crisis to dissuade progress on such a pivotal issue.
Or in sum: if Sen. Grassley thinks we need to slow down and figure out what's wrong with our immigration system, he should be enthusiastically supporting this bill. Because anyone who's been in the field can tell you with precision how and why the system is broken and badly in need of reform. That exactly is the dialogue that has been opened with last week's Senate bill. That the Senator thinks we need to put the brakes on what alreadya glacially slow process exhibits the obvious: he's pandering to the group that still thinks the solution is to "deport them all."
We've begun to analyze the 844 page Senate comprehensive immigration reform bill
, the "Border Security, Economic Opportunity and Immigration Modernization Act of 2013." First is an explanation of one of the most contentious parts of the bill: the RPI Status.
First, the warning: THIS IS NOT LAW YET. It is only a proposal. But it still is a good idea to learn about it and plan, because if there is reform, there's a good chance that some or most of this bill will make it into the final law. But do NOT apply for anything, and do NOT pay anyone to file anything.
Now on to business.
"Registered Provision Immigrant" is the new status that will allow the current undocumented population in the United States, estimated at 11+ million, to become "documented." This means they will have the ability to work for any employer, and also have the ability to travel in and out of the United States.
The main qualifications are:
- Must have been in the US since on or before December 31, 2011.
- Any absences from the US after December 31, 2011 must be "brief, casual or innocent" (similar to the regulations for TPS and DACA)
- Cannot have a felony (as defined by the convicting court)
- Cannot have an aggravated felony (as defined by the immigration law)
- Cannot have more than 3 misdemeanors, BUT - minor traffic offenses do not count, and multiple misdemeanors on the same day are counted as one misdemeanor
- All federal income taxes must be paid in full before filing.
Other important points in the proposal:
- You must file within 1 year of the law becoming active. (This may be extended for another 18 months, but that is not guaranteed.)
- There is no "affidavit of support" requirement for RPI status (INA 213A - filed on Form I-864)
- People who entered the country illegally ("EWI" or entry without inspection), or without a visa, or were ordered deported, or stayed past a grant of voluntary departure, or illegally re-entered the US after being deported, can all apply for RPI status, so long as any illegal entry or reentry does not occur after the date the proposal becomes law.
- The definition of a "conviction" is different from the rest of immigration law. It does not include expunged convictions, or those that have been set aside, or an "equivalent" disposition. Normally, even an expunged conviction may still be a conviction under immigration law. So it's good that not all convictions will bar eligibility for RPI status.
- There are limited provisions for waivers in case a person does not qualify 100%.
Dependents (children and spouses) of RPI applicants can also get derivative RPI status. But they must actually be spouses (that means you should actually get married) and not divorce before gaining status. If the dependent does not qualify as a dependent, they may be able to apply independently. Ordinarily, though, families should be able to apply together on one single form. The proposal does not say whether only one set of filing fees would apply; it seems reasonable to conclude they probably would not.
From these requirements, it is clear that it may take some time for some people to qualify. For example, all taxes must be paid before filing, and you only have 1 year to file. If you owe a lot of back taxes, you might want to start tackling that problem now.
- If you are living with your long-time girlfriend or boyfriend or fiancée, and are living as a married couple, go get married.
- If you have never filed taxes, start now. File all back taxes. You can get an Individual Taxpayer Identification Number (ITIN) quite easily with your first return.
- Begin collecting any and all evidence of your physical presence in the US prior to December 31, 2011. Contact us with any questions you may have.
- Get copies of all criminal records. Even the expungements. If something is eligible for expungement, get it expunged. Contact a lawyer for help.
As always, contact us (via the form on the right) with any questions. Keep checking back here as we continue to analyze other portions of the proposal, and be sure to read our outline summary
of the entire proposal.
And remember - THERE IS NO NEW LAW YET. Anyone who tells you differently is lying to you. Be on guard for fraud, and don't be a victim.
Senators outlined a more detailed roadmap
of what a new American immigration policy would look like today, building on their previous announcement
. They're calling it the "Border Security, Economic Opportunity, and Immigration Modernization Act of 2013." It's a real game changer. While
we will continue to read and give you our thoughts on it, here is a preliminary, easy-to-understand summary of the plan:BORDER SECURITY
REGISTERED PROVISION IMMIGRANT (RPI) STATUS
- It will take at least 6 months, and probably longer, for the government to start a plan to secure the Southern border. Until these plans commence, no one in undocumented status can apply for anything.
LEGAL IMMIGRATION REFORM
- Once the border security plan is underway, undocumented aliens will be able to apply for the new "Registered Provision Immigrant" or "RPI" Status. This is a new status that does not currently exist within the immigration law.
- RPI is an "adjustment" of status, which means it will be possible to apply for it without having to leave the United States.
- To qualify for RPI, you have to have been in the US since 12/31/2011, pay a $500 fine (except for "Dreamers"), pay (some) taxes, and not have more than 3 misdemeanors or 1 felony.
- Spouses and children in the US can get derivative RPI status.
- Even people who have been deported or are in removal proceedings may be allowed to apply for RPI status. Once granted, it will last for 6 years, renewable again (with another $500 penalty).
- After 10 years of RPI status, assuming the border is secure, people can apply for regular LPR status (and pay another $1000 penalty) as long as they can show they paid all taxes due and have a clean criminal record.
- Two exceptions: Dreamers and agricultural workers. They will be exempt from the $500 penalties, and only will have to wait 5 years in RPI status before being able to file for their green cards, and be immediately thereafter eligible for citizenship.
- On the family side, no more will there be 5 categories of preference petitions. US citizens and permanent residents will be able to sponsor their spouses and children with no wait.
- But US citizens will lose the ability to petition for their siblings 18 months after enactment.
- There will be no more diversity visa (visa lottery) program after FY2014.
- On the employment side, EB-1 petitions will now be always current ; EB-2 and EB-3 will be expanded from 28.6% to 40% each of available visas, with the remaining going from 7.1% to 10% apiece to EB-4 and EB-5. This should eliminate the lengthy employment-based backlogs, especially for China and India.
- There will be a new "startup visa" for entrepreneurs who want to start new companies in the US.
- No sooner than 2018, a new "merit-based visa" will be available for people who can "score points" based on their length of time in the US, educational level, and skills. This is similar to the current system in place in Canada.
- The H-1B cap will increase to 110,000 and can float as high as 180,000 if the market demands it.
- H-1B employers will be required to pay significantly higher wages to H-1B employees, and there will be a much more complex labor certification that involves offering the jobs to US workers first, just as is currently done under the permanent labor certification (PERM) system.
- H-4 spouses may be eligible for work permits, so long as the alien's home country provides reciprocal benefits to spouses of US workers.
- F-1 visas for students in a bachelor's or higher degree programs will become dual intent. No more proving intent to go back home after graduation.
- A new W visa for lower skilled workers will be created for jobs in construction, farming, janitorial services, etc. To get it, the job must be with a registered employer for a registered position. Employers must obtain these certifications (both for themselves and the jobs they seek to fill) before sponsoring W nonimmigrants.
- Spouses and children of W visa holders may join. It will last for 3 years and need to be renewed thereafter for so long as the worker is not unemployed for more than 60 days. Travel outside the US is authorized.
- The Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS) would become law, allowing certain undocumented farm workers to apply for an "AgCard" status and lawful permanent residence, with only a $400 fine
Read the outline of the "Border Security, Economic Opportunity, and Immigration Modernization Act of 2013". And please, as always, be on guard for notario fraud!
I attended the All In For Citizenship rally - the so-called "April 10 Movement" last week on the National Mall in Washington, DC.
Thousands of people attended. As a practicing immigration lawyer, it was a welcome and long-overdue recharge. Those who are against reform - or those who are just against immigrants - frequently talk in terms of laws, numbers and jobs. The citizenship rally was a stark reminder that the issue of immigration reform is an inescapably human
issue. And yes, that means it involves the civil
rights of human beings
. It's an important way to frame the debate over immigration policy. As I've blogged about before
, words like "illegal alien" or "criminal alien" shape perceptions of immigrants who came here illegally or fell out of status, because they dehumanize.
Slavery was justified not only Scripturally, but legally. The law simply did not recognize the relationships of the slave family, because the members of that family were not human. Likewise other shameful traditions, such as denying women's suffrage, or segregation, were justified by appeals to (interpretations of) religion, culture, economics...anything to take away the human face of the civil right violation. It's hard not to see the immigration restrictionists in the same vein.
I overheard Roy Beck, a representative of NumbersUSA, a restrictionist organization, speak
to the BBC. He, too, framed the debate in terms of the economic cost of undocumented people (specifically, jobs he said Americans were losing) and rather contemptuously nodded to "all this talk about rights." I was struck not only by the contempt he showed for these "rights" - but also the assumption that his economic data trumped them.
Leaving aside the fact that accurate statistics for such a complex issue are going to be hard to come by - the rally reminded me of the human face of the immigrant rights movement. That's an enormous boon for someone who works in the broken system day in and day out. I was interviewed
by PressTV and part of my frustration at the current system stems from the fact that immigrant rights are
civil rights, and the violation of a civil right is morally wrong.
Here is a small gallery
of photos I took at the rally.
On April 10, the HMA Law Firm founder Hassan Ahmad will join thousands on the Mall in Washington, DC to take part in the "All In For Citizenship" rally planned by nearly 50 immigrant rights groups.
This is a timely rally, and an important opportunity to show the need for immigration reform. As we've blogged about before
, the restrictionist vocabulary ("illegal alien," "anchor baby" and "criminal alien") has served to dehumanize immigrants by lumping them together and labeling them "criminals" or somehow inherently "illegal."
The Citizenship Rally is a time to show the real faces of immigrants. And they are human
faces. It's time to fix this broken system and stop defending it in the name of the law.
They said the same thing about slavery, suffrage, and "separate but equal." Didn't make it fair. Didn't make it right.
Attorney Hassan Ahmad will be on the Morning Show (Pedro Biaggi En La Mañana
) on El Zol 107.9 FM the at 9 am to talk about the Citizenship Rally scheduled for 3:30 pm tomorrow, April 10, 2013.
Though I understand that there are political motivations behind the GOP's rather recent about-face in favor of meaningful comprehensive immigration reform, it's still noteworthy and encouraging to see this type of bipartisan partnership which I wholeheartedly believe will benefit our country.
There are at least three major pieces of immigration reform:
- Legalization of the 11+ million foreign nationals currently out of status in the United States,
- Creation of a guest worker program for future workers
- Reforming programs for highly skilled workers
There's more to it than that, of course - but note I do not write "border security." It's not because border security is not important: it is. But as we've blogged about before,
border security is so intimately tied with immigration reform it should not be mentioned separately. The border will become
having a sensible immigration system.
What's encouraging this time around, unlike 2007, is that there seems to be agreement
on the major points of immigration reform: that we can't call for deportation of all 11+ million, nor can we wait for some unknown date in the future for the border to be declared secure before people even get the chance to apply. The recent exhaustion of the 2014 fiscal year's H-1B
cap underscores the need for reform in the highly skilled arena as well. Sen. Lindsey Graham quipped, "Seventy-thirty, we get there" today on Meet the Press.
The disagreements seem to center on when and how back fines should be paid, how many guest worker visas should be allowed (it seems while 200,000 per year was initially proposed, the current proposal is only 20,000 to increase to 75,000 in four years). These are details, which can only be rationally discussed if there is a general underlying understanding.
Will 2013 be the year? We hope so.
The HMA Law Firm would like to remind readers of things that can be done now
to help prepare for reform if it passes. Don't be late. We learned first hand in the wake of Deferred Action (DACA) - it pays to be early. (Want to know why? Send us a note!)First: get right with all your taxes. If you owe taxes, get on a payment plan with the IRS. Visit the IRS website here and apply. If you haven't paid taxes, start now. If you don't know where to begin, see a tax professional. Our law firm recently opened a tax service where we do all types of tax returns, and because we are immigration lawyers as well, we know how to help.Second: learn English. It appears that if there is immigration reform, one of the proposed requirements with which no one quibbles is to learn English. So it's a good bet that reform will include this requirement. And learning English might take time. So start now. Many neighborhood resource centers offer free or low-cost English classes. And the State of New York announced it will join other states and cities and open a new office to provide services to immigrants, including English classes.Third: collect all documents from the entire time you've been in the United States. Old receipts from money transfers back home, pictures, paycheck stubs, bank statements, pieces of mail, lease agreements, bus tickets, old emails...anything and everything. Don't throw anything out. You never know what a good lawyer will be able to use to prove your presence in the United States - something else which may well be a requirement if there is immigration reform.Fourth: consult with a lawyer and make sure there are no problems in your history. Some people are not aware they were placed in removal proceedings and ordered removed. Others think they had their criminal case dismissed, but do not know that sometimes a dismissal can be a conviction under immigration law. If there are problems, it's best you deal with them now.
And almost before it even started, FY2014 H-1B season is OVER.
USCIS announced today
that the cap has been reached. All H-1B's received this week will be subject to a lottery. So far we don't know how many were received, but a lot of people are going to be very (and justifiably) angry.
Now the US can't tap into the worldwide talent pool for another 18 months. We need Congress to act NOW. Is this a sign of economic recovery? It is at least an indication. But one thing's for sure: it's a sign of how out-of-touch our immigration system is. There are clearly enough employers needing to hire foreign workers who are by definition highly skilled.
It does feel like 2007/2008 again. I hope Congressional action makes 2013 a different year.