Biden Plan for Undocumented and Those with Removal Orders Is Generous

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The Biden Administration’s big immigration bill, “The US Citizenship Act”, sent to Congress on February 18, 2021, is expected to draw opposition and faces an uphill climb. In what form it will emerge from Congress if it does remains to be seen. This article will only discuss one part of the bill – the provisions for the undocumented including those with final orders of removal or deportation to apply for status as “Lawful Prospective Immigrants”.

Generally, applicants must be physically present in the US on January 1, 2021, and maintain continuous physical presence from that date until the application is approved although absences of less than 180 days during a calendar year are not to be considered violations of the residence requirement if the absences are brief, casual, and innocent, whether or not the absences are authorized by DHS. Ineligibility grounds are confined to criminal, security, human smuggling, ineligibility for citizenship, child abducting and unlawful voting bars. Deportation or removal orders are not a bar; neither is the two-year home residence requirement restriction for some J-1 visa holders.

Most criminal acts as well as human smuggling, ineligibility for citizenship, child abduction and unlawful voting are waivable.

On crimes, felonies can bar, but state laws classifying offenses as felonies for which an essential element is the individual’s immigration status are not applicable. Most felonies, except for aggravated felonies can be waived except that multiple barring crimes involving moral turpitude can only be waived if the noncitizen has not been convicted of any offense during the 10 year period prior to the application for lawful prospective immigration.

Misdemeanors can also bar, but it takes three or more, and not counted are simple possession of marijuana or marijuana related paraphernalia, any offense regarding marijuana or marijuana related paraphernalia no longer prosecutable in the state of conviction, any offense for which an essential element is the individual’s immigration status, any offense involving civil disobedience without violence, and any minor traffic ticket. A further limiting factor on misdemeanors is that there can be no multiple counting of misdemeanors occurring on the same date and arising from the same act, omission, or scheme of misconduct. Waivers can also be given for misdemeanors on a scale of waiving one if there were no offenses within five years of application, and waiving two if there were no offenses within 10 years of application.

Waiver criteria do not primarily depend upon having qualifying relatives in the country. Humanitarian purposes, family unity, or public interest are to govern waiver decisions. DHS is to consider all mitigating and aggravating factors including severity of the underlying circumstances, conduct, or violation; the length of the individual’s residence in the US; evidence of rehabilitation if applicable; and the extent to which the individual’s removal or denial of application would adversely affect the individual or the individual’s US citizen or lawful permanent resident family members.

Persons who are out of the country having been deported during the Trump Administration beginning on January 20, 2017, can be given a waiver of deportation or removal and the requirement to be physically present in the US on January 1, 2021, and apply for the program. The waiver decision would again be based on humanitarian purposes, to ensure family unity or if it would be in the public interest. Eligibility factors for such a waiver are that the individual was continuously physically present in the US for not fewer than three years immediately preceding the date on which he or she was removed or deported and that the applicant did not reenter the US unlawfully after January 1, 2021.

Deported or removed individuals who sneaked back into the country by January 1, 2021, appear to be eligible for the program.

Lawful permanent residents, persons admitted as refugees or granted asylum, or individuals who are in a period of authorized stay in a nonimmigrant status according to the records of DHS or the Department of State as of January 1, 2021, are ineligible for the program.

Applicants can apply with their family members in a single combined application, and there would be an accompanying petition to classify the dependent spouse or children of the principal applicant. The dependents can be in status. Other classes that can be in status and apply are those in nonimmigrant status solely by reason of §702 of the Consolidated Natural Resources Act of 2008, H-2A farmworkers, persons who have engaged in “essential critical infrastructure labor or services” during the Covid-19 response period, and those paroled into the Commonwealth of the Northern Mariana Islands or Guam who did not reside in the Commonwealth or Guam on November 28, 2009.

Persons who are prima facie eligible to apply will be given a reasonable opportunity along with limited protections if they make the application within a reasonable period of time in that they are not to be removed before DHS makes a decision denying relief; a final order of removal has been issued; and the DHS decision is upheld by a court or the time for appealing for judicial review has expired. An exception to waiting until the end of judicial review for removal is if the order of removal is based on criminal or national security grounds.

To apply, required documentary evidence of ID includes not only traditional past legalization IDs like passport, national identity document, birth certificate/identity card with name and photograph, school ID card with name and photograph and school records, state ID card, Department of Defense uniformed services ID card, any immigration or other document issued by the US government with the name and photograph – but also any other evidence that DHS determines to be credible.

Documents establishing continuous physical presence include any other evidence determined to be credible, sworn affidavits, official records from religious entities confirming participation in a religious ceremony, and the more typical required evidence such as passport entries with US admission stamps, DOJ or DHS documents noting the person’s date of entry, schooling records, employment records, uniform services records, birth certificate for child born in the US, hospital or medical records, auto license receipts or registration, deeds, mortgages, or rental agreement contracts, rent receipts or utility bills, tax receipts, insurance policies, remittance records, travel records, and dated bank transactions.

Upon submission of the application, DHS will not deny the application until it sends out a Request for Initial Evidence (RFI), and the applicant fails to submit the evidence including requested biometric data by the deadline date. If the applicant fails to comply with the request and the application is denied, the individual can submit an amended application or supplement the existing application without an additional fee as long as the amended or supplemented application contains the required information and any fee that was missing from the initial application.

Denied applications can be appealed to an administrative appellate authority to be established or designated by DHS, and administrative appeals are limited to one for each decision. The time for appeal is 90 days from the date of service of the denial unless a delay beyond the 90 day period is reasonably justifiable. Further judicial review is allowed and governed by the rules involving immigration cases.

Approved applicants will be allowed to remain in the US for six years with travel and work authorization. A further extension of six years is possible. Applicants are eligible to apply for adjustment of status to permanent residence after five years of lawful prospective immigrant status.

For those concerned that DHS may share the submitted application information for removal proceedings or other purposes, there is a strong privacy restriction against the sharing of information except to a duly recognized law enforcement entity in connection with an investigation or prosecution of a criminal or national security offense, or for identification purposes of identifying a deceased individual upon request of an official coroner.

This part of the big bill affecting undocumented immigrants is to be fast tracked as the DHS Secretary is to issue a final regulation no later than 180 days after the President signs the legislation into law.

Hopefully the legislation will come to pass as it is long needed not only to bring people out of the shadows and to help reverse the reign of terror fostered by the Trump administration, but to help grow the economy as all serious studies have shown that immigrants-lawful and unlawful-benefit this great country socially, economically, and culturally.

[Please note that this article does not purport to be an extensive article outlining most of the “US Citizenship Act” or even cover all classes eligible to become lawful prospective immigrants. It touches on the major points of the legislation for the undocumented and those with final orders.]




About The Author

Alan Lee, Esq is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2020), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


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