Senate Immigration Bill – The Good, The Bad, The Ugly

by Prerna Lal

The U.S. Capitol dome and U.S. Senate in Washington

The Senate immigration bill dropped last night and I’ve finally done a quick-read through. These are my initial thoughts about the legislation -

The Good

  • DREAM Act - No age cap on the DREAM Act and DACA grantees would be grandfathered into the RPI program
  • Asylum – No one-year asylum bar and the ability to file a motion to reopen if asylum claim was denied merely due to one-year bar issues. Permits qualified stateless individuals to apply for lawful permanent resident status
  • A two-track merit-based system, which takes into account family, employment, length of residence education and skills, to be implemented five years after enactment of the bill.
  • Child Status Protection: Clarification on retention of priority date for all children who age-out of family, employment and diversity-based visas. This overturns Matter of Wang and better put an end to the ongoing litigation now at the Supreme Court.
  • International adoption harmonization allows adoption of foreign-born children till age of 18 (as opposed to 16)
  • Relief for orphans and widowed spouses who were deported prior to abolition of “widow penalty” can now be paroled into the U.S. and considered for adjustment of status
  • Equal treatment for all stepchildren, as in the age until which step-children can be considered child is amended from 18 to 21.
  • New family V Visa - Creates a new nonimmigrant visa for families with approved petitions to work and live in the U.S. while waiting for their green card. Allows other familymembers including siblings to visit the U.S. for up to 60 days per year
  • Lawful Permanent Residents’ spouses and children become “immediate relatives” and are uncapped
  • Naturalization: Waiver of English requirement for senior immigrant naturalization
  • Immigration Court proceedings - Counsel appointed by law in removal proceedings with children, mentally disabled, and “particularly vulnerable aliens.”
  • Restoration of  judicial discretion and lowering the bar to grant waivers in removal proceedings for anyone whose removal would cause hardship (not extreme hardship) to USC/LPR parent, spouse or child.
  • Allocation of immigration judges, support staff and BIA personnel to deal with backlogs in Immigration Court
  • “Secure alternative program” to allow for alternatives to immigration detention and creation of more Congressional and judicial review for detention practices
  • New non-immigrant W-visa program for low-wage foreign workers performing services or labor for a registered employer in aregistered position; Spouses and minor children are included and will receive work authorization. Three year visa with three year renewal periods. W visaholders may switch from one registered employer or position to another without penalty and upon meeting other eligibility criteria apply for the merits based lawful permanent residence.
  • Creation of a portable, at-will employment based visa (W-3 visa)and a contract-based visa (W-2 visa) to replace the current H-2A program, which would sunset after the new guest worker program is operational
  • AGJOBS - Creation of a blue-card program given to agricultural workers who performed agricultural employment for no fewer than 575 hours between 2011 and 2012. Persons on blue card can gain LPR status in five years.
  • RPI status, with 10 year pathway to green card, followed by 3 year path to citizenship. Denied applications subject to AAO appeal and judicial review! Dependents of immigrants with RPI status could independently apply for RPI status if the prinicipal’s RPI status is revoked
  • Those who illegally re-entered after a prior removal could obtain RPI status if they re-entered before Dec. 31, 2011. Waivers for persons to enter as RPI if they have already been deported if they are USC/LPR parents, spouse or child or eligible for the DREAM Act
  • Waivers for false claim to citizenship and misrepresentation, finally.
  • Persons in TPS status can change their status to RPI status.
  • F-1 students – Authorization of dual-intent for student visas.
  • H-1B – More H-1B allocation expanding the current cap from 65,000 to 110,000 with an option to ultimately increase the cap to 180,000 visas annually as demand dictates; work visas for H-4 non-immigrants if the country of origin reciprocates with given visas to spouses of U.S. citizens who are working there
  • More employment-based reforms - Spouses and children of employment based visa applicants, STEM graduates with doctoral degrees, certain other experts and professionals, and certainforeign doctors are exempt from the employment visa cap.
  • Makes permanent the H-2B returning worker provision
  • Streamlining U.S. visa system to enhance ease of travel for international visitors.
  • A retiree visa for persons who establish residence in the U.S. after the age of 55.
  • New start-up visa for entrepreneurs with an investment of at least $250,000 and creation of at least 3 jobs.

The Bad

  • Elimination of diversity visa, elimination of sibling petition, elimination of ability to petition married children over the age of 31
  • No recognition of permanent partners
  • RPI status tied to border security triggers for the vast majority of people
  • RPIs cannot become LPRs until immigrant visas became available for all approved petitions filed before the date of enactment.
  • Initial 20,000 cap on W-visa workers quite low.
  • People granted RPI status cannot qualify for merit-based visas until 10 years down the line
  • Everyone who entered the country and lost status after Dec 31, 2011, subject to detention and deportation (but can probably qualify for a waiver)

The Ugly

  • Mandatory E-verify
  • Ramping up Southern border enforcement with allocations of over $4.5 billion
  • New grounds of inadmissibility and deportability relating to document and passport fraud, member of “criminal street gang,” habitual drunk driving (3 or more DUIs), convictions related to domestic violence, child abuse, stalking, violation of  protection orders and failing to register as a sex offender.
  • New civil and criminal penalities for illegal entry.
  • Penalties for “hindering or obstructing immigration investigations”
  • Maintaining 3/10 year bars for unlawful presence, unlawful entry, thus, locking people in, while ramping up on locking them out

This is by no means, a comprehensive breakdown of 844 pages, and I’ll be revising it periodically. Additionally, this is merely proposed legislation, which is far from reality. However, there is something for everyone, which means that it has a good chance of becoming law, with several amendments. But, as we know from previous legislation, most of the provisions do not mean much without effective regulations after enactment. As you can see though, the good outweighs the bad.

My first thoughts on reading through an outline was that this is going to be an Asian century. After reading through the legislation, it continues to spell dramatic changes in terms of shaping who will enter America and become American. The elimination of the diversity visa means that we will sadly see less people of African and Pacific Islander descent. The proposed future flow system strikes a careful balance between family and employment based visas, and in doing so, moves us away from family reunification. But the creation of a two-tier merit-based system, start-up entrepreneur visas (INVEST) and the allocation of more employment-based visas will hasten the immigration of many Asians to America, many of whom would be highly-skilled and educated, which will in turn, re-shape American demographics, cities and suburbs, and quite possibly, race-relations as this becomes a majority-minority country much more rapidly.

Here is the Senate bill, an outline of the bill and a short summary.

About The Author

Prerna Lal is undocumented, unafraid and unapologetic. As a founder of DreamActivist, Prerna helped to create a robust network of highly-organized and diverse undocumented youth with digital engagement capacity. Since then, her model of organizing has been used by immigration organizations across the country to end deportations. Her work and commentary for immigrant rights has been featured in newspapers such as The New York Times, USA Today, CNN, and magazines such as the US News and World Report, as well as international outlets in a dozen countries. Prerna currently resides in Washington D.C. with her same-sex U.S. citizen partner, and has been a Board Director at Immigration Equality, an organization that works on issues around LGBT immigrants, since 2010. She is currently pending admission to the State Bar of California. After admission to the California Bar, Prerna will be an Associate Attorney at Benach Ragland LLP, a top-tier D.C. immigration law firm.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.