The U.S. Citizenship Act of 2021 is finally here. It was unveiled last week by Senator Bob Menendez and Representative Linda Sanchez. The bill is very ambitious in scope, and aims to legalize about 11 million people, including "undocumented" immigrants, Dreamers, and people with Temporary Protected Status.

The odds-makers in the media seem to give the bill little chance of passing through the Senate, which requires at least ten Republicans to join with all the Democrats and Independents in order to overcome a filibuster. Some Senators (notably Lindsey Graham) have signaled a potential willingness to support a smaller bill--maybe one that would legalize Dreamers (also known as beneficiaries of DACA). This dilemma--which proponents of immigration reform have faced for decades--is nothing new: Go big and have more trouble passing a bill, or go small and help fewer people. We will have to see how things go, and certainly immigrant advocates need to be lobbying for a more comprehensive bill.

The bill itself is over 350 pages long and covers many different aspects of immigration. In this post, I will focus on a few points that directly affect asylum seekers. You can find basic summaries of the entire bill at Vox and Wikipedia, and a more comprehensive summary from blogger extraordinaire Greg Siskind. Here, though, we'll stick to discussing only those provisions that relate most directly to asylum seekers.

Let's start with the big one: The path to citizenship for "undocumented" people who were physically present in the United States prior to January 1, 2021 and who are still here. Before the text of the bill was released, there was speculation about who counted as an "undocumented" person. It was unclear whether people with pending asylum cases would fall into that category, and whether they would be eligible to benefit from the bill. Now that we have the bill itself, it seems that most asylum seekers would be eligible for a Green Card under this bill, including many asylum seekers whose cases are in Immigration Court.

Basically, the bill covers everyone who was here prior to January 1, 2021 and who was not in lawful non-immigrant status. This means that if your only status was asylum pending, you are covered by the bill and--if it becomes law--you would likely be eligible to get a Green Card. However, if you have a pending asylum case and were also in lawful status (on an F, J or H1b visa, for example) until January 1, 2021, you would not be eligible for a Green Card under the Act. One exception to this rule is that spouses and children of people eligible to get a Green Card under the bill may also be eligible to get a Green Card themselves, even if they were in lawful non-immigrant status. Another exception applies to certain people in valid non-immigrant status who are involved in the response to the pandemic.

In a sense, it seems unfair that people who maintained lawful status are being "punished" by being excluded from eligibility for a Green Card. On the other hand, since most asylum-pending people would get a Green Card under this bill, the backlog should largely be cleared up, and any remaining asylum cases should move through the system rapidly. So in that sense, even those asylum applicants who do not benefit directly would benefit indirectly.

It is important to note that not everyone who was "undocumented" prior to January 1, 2021 would be eligible for a Green Card. People with certain criminal convictions, national security issues, and some prior immigration violations could be ineligible.

In sum, if the U.S. Citizenship Act becomes law, the large majority of people in the asylum backlog (at the Asylum Office and in Immigration Court) would become eligible for a Green Card. The path to a Green Card is not fast--the new bill creates a status called "lawful prospective immigrant," which allows a person to live and work in the U.S., and travel overseas for limited periods of time. In practical terms, lawful prospective immigrants would have most of the benefits of Green Card holders. After five years, such people could apply for lawful permanent resident status (i.e., a Green Card).

Another piece of big news in the bill is that it would eliminate the one-year filing requirement for asylum. For anyone previously denied asylum solely because of the one-year bar, the bill gives them two years to reopen their case and obtain asylum. This includes people who received Withholding of Removal (which is a common--and inferior--form of relief for asylum applicants who miss the one-year bar).

The new bill would also reduce the time asylum applicants must wait for an Employment Authorization Document ("EAD"). Currently, the law requires that an applicant wait at least 180 days after the asylum case is filed. Pre-Trump, the regulations (which interpret the law) allowed an applicant to file for the EAD after 150 days, but the EAD itself could not be issued until at least 180 days had passed. Last summer, the Trump Administration changed the regulatory wait time to 365 days, but that has largely been blocked by a court. Under the new bill, the maximum wait time before filing for an EAD would be 180 days, and DHS could issue regulations allowing asylum applicants to apply for an EAD anytime before then.

The bill states that "employment authorization... shall be valid until the date on which there is a final denial of the asylum application, including any administrative or judicial review." Whether this means the actual EAD card will be valid for the duration of the case, or whether asylum applicants will need to renew the EAD card periodically, I am not sure. But it does extend EAD eligibility through any federal court review, which is something new.

For people who have Withholding of Removal or relief under the UN Convention Against Torture, the validity period of their EAD will be extended from one year to two years. Since both these statuses are effectively permanent, it would be better to extend the EAD even longer, but this is certainly an improvement over the current state of affairs.

The bill also authorizes additional funding for asylum in order to reduce the backlog.

Finally, there are other provisions that are probably less relevant to most readers: Strengthening international relations to better manage asylum and increase capacity in other countries, programs to dissuade potential migrants from coming to the U.S., improved asylum processing at our Southern border, and more grant money for non-profits that assist asylum seekers and refugees.

This bill is not perfect, but it would provide relief and legal status for millions of people--including many asylum seekers--who are currently in limbo. Let's all resolve to do what we can so that the U.S. Citizenship Act of 2021 becomes law.

Originally posted on the Asylumist: