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  1. Summary of Day's Amendments to Senate Bill 744 - 5/21/2013

    by , 05-21-2013 at 09:14 PM (Greg Siskind on Immigration Law and Policy)
    And here are the final committee amendments to S. 744. The big news today was the agreement to Senator Hatch's demands on H-1B changes (and some surprise additional language in that amendment on green cards) as well as Senator Leahy's decision not to jeopardize the bill by voting on same sex marriage provisions.
    5-21 amendments
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  2. Breaking: Senate Judiciary Committee Advances Immigration Bill

    by , 05-21-2013 at 04:53 PM (Greg Siskind on Immigration Law and Policy)
    13-5. On to the floor. Full summary of amendments coming shortly.
  3. New Hope for Immigration Reform in the United States: An Analysis of the Proposed Legislation

    By Danielle L. C. Beach-Oswald

     The 2012 presidential election campaign demonstrated the
    growing power of Latino voters in key states such as Texas and California and
    gave new political life to long-stagnant efforts at immigration reform.  In this context, on April
    16, 2013, a bipartisan group of Senators, known commonly as the "Gang of Eight,"
    introduced an 844-page bill titled, The
    Border Security, Economic Opportunity, and
    Immigration Modernization Act of 2013 (S. 744) that, if passed, will significantly change the U.S.
    immigration system, in both positive and negative ways.  It is currently estimated that 11.5
    million undocumented immigrants are living in the United States, and the
    legislation currently proposed is geared towards legalizing their status and
    providing the first major overhaul of the immigration system since the Ronald
    Reagan administration in the 1980s.
    The analysis below draws largely from an extensive summary of
    the bill's contents provided by the Democratic Policy and Communications Center
    (DPCC).[1]  As of this writing, the bill has not yet been
    voted on in the Senate or taken up in the House of Representatives and so its
    contents are still subject to change. 
    However, an analysis of the bill in its current form is warranted, as it
    is the clearest and most comprehensive indication of the future of immigration
    law in the United States. 
    Major Changes
    As it is currently written, the legalization of
    currently-undocumented immigrants (who would acquire legal status) is contingent
    upon several "triggers," not least of which would be expanded resources and
    enforcement measures in the area of border security. To that end, the proposed
    bill would allocate $3 billion to fund enhanced border and immigration security
    measures, including the development of a border security fencing plan by the
    Secretary of Homeland Security, a "mandatory and operational" Electronic Employment Verification
    System (EEVS, more commonly known as E-Verify), and the implementation
    of "a biographic
    entry-exit system at air and seaports."
    Registered Provisional Immigrant
    The law would provide a new
    form of relief called Registered Provisional Immigrant (RPI) Status.  Undocumented immigrants who came to the U.S.
    before December 31, 2011 and have continued to reside in the U.S. would be able
    to apply for RPI status.  In the long march towards permanent
    residency and eventual citizenship, RPI applicants would be required to pay
    multiple fines and fees and any back taxes, pass multiple background checks,
    show that they are working to learn English (if they do not speak it already),
    and be able to demonstrate economic self-sufficiency.  Once RPI status is approved, persons with RPI
    status would retain such status for six years and be given employment
    authorization as well as travel authorization, both of which would be significant
    benefits for many people who have long been unable to legally seek gainful
    employment or travel to their native countries. 
    After six years, RPIs would need to file to renew their status, showing
    they still meet all the eligibility criteria and paying additional filing fees.

    10 years after acquiring RPI status, individuals would
    be able to apply for permanent
    residence. Such
    applicants would be required to wait until the existing backlog of applicants
    had been processed before adjustment of their status would be reviewed.  Three years after attaining permanent residency,
    former RPIs could then apply for naturalization to become U.S. citizens.  All told, the time from granting of RPI
    status to citizenship would come to at least 13 years.
    The long wait before acquiring permanent residency seems
    somewhat arbitrary, especially when applied to individuals who have already
    been living in the United States for decades. 
    Moreover, throughout the entire process, immigrants would have to pay at
    least $2,000 in fines and hundreds more in fees along the 13-year path to
    citizenship, thereby potentially excluding those unable to pay the fees. The
    employment or income requirements for both RPI status and permanent residency
    through RPI status also seem highly problematic, absent further guidance on how
    such requirements would be enforced in actuality, as it seems that low-income
    immigrants could be deprived of the benefits offered through the
    legislation.  Moreover, even though the
    proposed legislation aims to eliminate the creation of future backlogs, it is
    questionable whether the existing backlogs could be cleared in the timeframe
    allotted such that RPIs could in fact seek adjustment of status 10 years after
    becoming RPIs. 
    While the bill would offer previously unavailable relief to
    many millions of individuals, it can also be criticized for the people it
    excludes.  For instance, persons who
    entered the United States after December 31, 2011 would be unable to benefit from the
    bill's provisions.  In addition, many
    individuals may likely be barred by acquiring RPI status because of expansive
    definitions of certain criminal acts under existing immigration law.  For instance, if a person has committed three
    relatively minor misdemeanor offenses, they may be ineligible for RPI
    status.  Finally, the English language
    requirement for adjustment of status could pose further barriers to otherwise
    deserving immigrants. 
    On the positive side, the bill as currently written would
    codify many important parts of the long-dormant DREAM Act, allowing RPIs who
    came to the U.S. before age 16 and earned a GED or high school diploma to apply
    for permanent residency.  Moreover, the
    law would also so-called 'DREAMers' to apply for naturalization after five
    years as an RPI (rather than ten).  Although the
    passage of Deferred Action for Childhood Arrivals (DACA) was a step in the right
    direction, the proposed bill offers a permanent solution and path to
    citizenship for the millions of individuals who came to this country as
    children and have made the United States their home. 
    Family Unity and
    Employment-Based Immigration
    Aside from the creation of RPI status, the proposed legislation
    contains broad changes to the existing family- and employment-based immigration
    system.  Legal immigrants who have been
    in the United States continuously for ten years or longer would be eligible to
    seek permanent residency, and permanent residents would be able to
    "immediately" sponsor their spouses or children for permanent residency. This would
    be a huge improvement in the current family-based immigration system, as it would
    eliminate the grossly long wait that permanent residents have to endure for
    their spouses and children to obtain legal status.  The bill would also enable "families with
    approved petitions to work and live in the U.S. while waiting for their green
    card" and would allow siblings short-term visitation periods. 
    Despite all of the positive aspects of the proposed legislation,
    there are several negative aspects that would potentially hinder family
    unity.  For instance, sponsorship of siblings
    for permanent residency would be eliminated, and children at or over 31 years
    of age would also be ineligible for sponsorship from their US citizen parents.  While previously-filed petitions would
    seemingly not be impacted, this would deprive many individuals of the right to
    be reunited with their adult children (over age 31) and/or siblings, and
    potentially leave recently-naturalized elderly individuals without family care
    takers to assist them as they age.    
    The bill also seeks to introduce a new merit-based system to the processing
    of immigrant visas.  It is a complicated
    point-based system, wherein prospective applicants for a so-called 'Track One'
    visa would be prioritized based on "various factors, including educational
    degrees, employment experience, and needs of U.S. employers, U.S. citizen
    relatives, and age," as well as how long the applicant has been living in the U.S.,
    while 'Track Two' visas would be granted to backlogged family-or
    employment-sponsored applicants (waiting five years or longer) and to individuals
    who have been legal permanent residents for at least ten years.
    One problem with the point system is the clear prioritization it
    gives to those immigrants who are already likely to benefit the most from their
    training and economic resources, leaving low-wage and low-skilled workers in a
    potentially indefinite wait period while their better-educated and wealthier
    counterparts skipped to the head of the line. 

    Despite my skepticism about the points-based merit system
    contained in the proposed legislation, there are numerous improvements with
    relation to the availability of certain employment-based visas.  For instance, it would increase the number of
    H1B visas available each year, as well as increase the availability of visas
    for certain low-skilled labor positions through the creation of a new "W" visa
    concerns are being raised over bill's provisions mandating the national
    implementation of the Electronic Employment Verification System (EEVS),
    commonly known as E-Verify.  While government officials report
    that E-Verify's accuracy has improved in the years since its introduction, the remaining
    possibility for error means that some individuals will undoubtedly be
    wrongfully denied employment to which they should be entitled.  Additionally, the system would potentially be expensive
    to maintain, and civil liberties advocates, such as the American
    Civil Liberties Union (ACLU) have expressed concerns that the
    centralization of personally identifiable information (PII) poses risks to
    Americans' privacy and increases the risk of identity theft.
    Asylum Applicants
    In my opinion, there would be at least two highly
    significant improvements in the law governing asylum if the proposed
    legislation is passed.  First and
    foremost, S. 744 seeks to eliminate the one-year filing deadline by which all
    asylum applicants must file their applications in order to be deemed eligible for
    asylum.  For many years, the requirement
    that an individual must file for asylum within one year of entering the U.S.
    has deprived many individuals from being granted asylum.  Often, individuals fleeing their countries
    with genuine claims of past persecution suffer from severe trauma, may not have
    had a formal education, or are unknowledgeable about the legal requirements for
    asylum.  Elimination of the one-year
    filing requirement would mean that such individuals would no longer be prejudiced
    based on their lack of knowledge of U.S. immigration laws.  Secondly, there would be cause for celebration
    if the proposed legislation were passed because it would provide certain
    at-risk persons in removal proceedings with legal counsel.  At present, while there is a right to counsel, there is no right
    to have counsel provided for those in need, which deprives many people facing
    deportation from relief from removal. 
    As summed
    up especially well in a recent
    Op-Ed by Bill Frelick of
    Human Rights Watch and law student Brian Jacek, a major challenge faced
    by many asylum seekers, and one that the proposed Senate bill fails to fully
    address, is the difficulty asylum applicants have supporting themselves
    economically while their cases are being reviewed.  Many asylum applicants are denied the right to
    employment while their applications for asylum remain pending, thereby
    depriving them of the opportunity to support themselves.  As Frelick
    and Jacek explain, the inability to work legally means that many asylum-seekers
    not only cannot afford attorneys to assist with their cases, but they also are
    pushed into the informal work sector, rely on assistance from friends or family,
    or may even end up living on the streets. 
    Unfortunately, S. 744 in its current form would not modify the existing
    regulations on employment authorization for prospective asylees.
    Supporters: Business, Labor, Religious Groups.  A
    striking element of the recent push for immigration reform has been the broad
    support it has received from many disparate sectors of the American political
    spectrum.  Many sectors such as the
    hospitality (restaurants, hotels, etc.) and agriculture
    industries rely heavily on low-wage workers, many of them undocumented, and
    would benefit from a normalization of their workforce as well as the ability to
    bring in additional part-time or seasonal workers from abroad.  The technology sector, including industry
    leaders such as Facebook CEO Mark Zuckerberg, has
    lobbied for increased opportunities to fill positions that they contend are
    currently vacant due to a lack of qualified American workers. Many
    labor unions, meanwhile, view the normalization of undocumented workers'
    status as an opportunity to increase union membership by organizing
    newly-legalized RPIs.  Such organizers
    believe that legalization would stem the so-called 'race to the bottom' in
    which U.S. citizens and legal immigrants continually accept cuts to wages and
    benefits in order not to lose out to their undocumented counterparts.  Many religious organizations have also lent
    their support to the immigration reform push, though (as discussed below) that
    support could waver if the bill is amended to include extension of sponsorship
    privileges to bi-national same-sex partners. 
    Finally, comprehensive immigration reform that includes a path to
    citizenship stands to benefit
    elected representatives from both major parties, helping to appeal to
    Latino voters while demonstrating that bipartisan compromise is still possible
    in a political climate that is often described as just as dysfunctional,
    ineffective, and broken as the current immigration system itself.
    Immigration Restriction Advocates. 
    Immigration restriction and border enforcement advocates such as
    Jim DeMint and conservative think tank the Heritage Foundation have derided
    what they refer to as "amnesty,"
    or any attempt to provide currently undocumented immigrants living in the
    United States.  While it s strongly contested,
    the Heritage Foundation recently released a report
    arguing that legalizing the status of the 11.5 million undocumented immigrants
    currently in the United States will cost the country over $6 trillion over
    those immigrants' lifetimes.  Because the
    public's attention is not yet fully focused on the proposed law, it remains to
    be seen whether these arguments will gain traction, though a recent reporting
    suggests that the majority of Americans (76% percent) favor passage of the
    proposed immigration legislation.  If
    such polling is accurate, it would suggest that there is sufficient bipartisan
    support to overcome concerns raised by the outspoken critics of immigration
    Same-Sex Couples.  One of
    the biggest question marks currently hanging over the current reform effort
    relates to the status of binational same-sex couples.  As
    reported in Politico, Vermont Senator Patrick Leahy, a Democrat and member
    of the 'Gang of Eight,' has promised to introduce an amendment to the proposed
    bill that would allow U.S. nationals to sponsor their same-sex partners for
    permanent residency (a move for which President Obama has also voiced
    support).  In response, according to
    Politico, Florida Republican Senator Marco Rubio claimed that the amendment "will virtually guarantee that
    [the bill] won't pass," though many Democrats reportedly remain skeptical of
    that assertion.  This, the article
    continues, is because support might waver or drop off entirely from the Republicans
    and religious groups upon whose success the bill depends (if the bill fails or
    only narrowly passes in the Senate, its chances in the House of Representatives
    are greatly diminished). 
    entire question of the status of binational same-sex couples could, however,
    become irrelevant if the Supreme Court rules that the relevant portions of the
    Defense of Marriage Act (DOMA) are unconstitutional.  In that case, binational same-sex married couples
    would be entitled to the same federal protections and benefits currently
    available only to heterosexual couples.  In my opinion, failure to include rights for same-sex
    couples would represent a major flaw in the legislation.  Truly comprehensive immigration reform should
    not exclude U.S. citizens and permanent residents in same sex-relationships
    from having the right to file petitions on behalf of their spouses.  
    In summary . . .
    There is still a long way to go before S.744 becomes law and some lawmakers,
    such as Sen. Rubio, are skeptical as to whether or not it will ever be passed
    as it is currently written.  While the
    proposed bill contains several areas for concern, overall the enactment of
    S.744 would be an enormous success for immigrants and immigrant rights
    advocates.  Immigrants to the United
    States have continuously contributed to this country culturally, politically,
    socially, and economically. 
    Unfortunately, the current immigration system has long been broken, and
    has not adapted to evolving economic, familial, and humanitarian needs.
    Immigration reform is in our country's best interests economically and reform
    would address the harm and suffering of so many deserving immigrants who seek
    to remain united with their families or otherwise wish to contribute to the
    nation in positive ways.  The time is
    long overdue for Congress to enact meaningful immigration reform, and the
    majority of the provisions contained in the proposed bill would be a huge step
    in the right direction.

    [1] Unless noted otherwise,
    all quotations are excerpted from the DPCC summary. 

  4. Obama fine with Denying Same Sex Spouses Immigration Benefits

    by , 05-21-2013 at 12:29 PM (Matthew Kolken on Deportation And Removal)

  5. A Rose By Any Other Name - May Not Be So Active Management by Matt Gordon

    In the
    lone amendment of S. 744 passed by voice vote in committee on May 16, 2013, was
    a potentially important and equally easy to overlook change to the section
    heading in section 4805.  Previously the
    section was entitled, "Alien Entrepreneurs", which pursuant to the amendment
    was struck and replaced with the heading "Employment-Based Immigrants". 
    This seems
    to imply a very important shift in the legislative intent for post-investment activity
    by the petitioner.  8 CFR ß204.6 (j) requires
    that petitioner show proof that he or she "... is or will be engaged in the
    management of the new commercial enterprise, either through the exercise of
    day-to-day managerial control or through policy formulation, as opposed to
    maintaining a purely passive role in regard to the investment."
    The new
    section heading implies a clear departure from the intent that the petitioner
    actively manages the business which is the recipient of his or her investment
    capital. According to the Merriam-Webster dictionary, an entrepreneur is "one
    who organizes, manages, and assumes the risks of a business or
    enterprise."  The existing requirements
    of subsection (j) were entirely consistent with this definition.  The new section heading, "Employment-Based" is
    both in the passive voice and result oriented. 
    The heading says nothing about who creates or manages the business that
    creates the employment.  Further, so long
    as the desired employment is created by the new commercial enterprise that is
    the recipient of the petitioner's investment capital, the petitioner would
    satisfy the policy mandate of being an 'Employment-Based Immigrant'.

    Of the many changes and improvements offered by
    S.744 for the EB-5 program, this in particular, holds the potential to provide
    additional pathways to apply EB-5 capital to business models which, under the
    existing regime, would be far more difficult.

    Download Leahy's Amendment
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