A Summary: The Proposed Border Security, Economic Opportunity and Immigration Modernization Act of 2013
The proposed bipartisan comprehensive immigration reform bill was formally introduced in the form of a 17-page outline. The author emphasizes that this is a proposal which is subject to debate. The final shape and form of the enacted bill may be different from the outline that is being introduced today. The purpose of this article is to provide readers an idea of what will guide the Senate debates in the coming month. More importantly, the public should be warned not to part with their hard earned money and rely upon unauthorized immigration consultants, often referred to especially in the Hispanic communities as notarios, who promise to help in the legalization process this early in time. Do not be lured by smooth talk and tactics often used by notarios to make you feel comfortable to use their services – many have lost the opportunity for an immigration benefit because of overpromising and dishonest consultants and, uncertified paralegals. While it is true that certain states and cities may have licensing procedures for immigration service providers (ISP), their role is often limited to translating and reproducing documents as well as completing immigration forms (but this is almost playing with fire because choosing a particular box to check within an immigration form or choosing which form to complete is considered providing legal advice, which ISPs are not allowed to do). Remember that only attorneys licensed in one jurisdiction and organizations recognized/individuals certified by the Board of Immigration Appeals (BIA) may provide advice on immigration matters. Learn more about notario fraud, reporting such activities, and how to protect yourself by visiting www.stopnotariofraud.org. Hopefully, members of the immigrant communities recognize their responsibility of policing fraudulent individuals or organizations especially within their own communities. The fight against notario fraud only becomes stronger with evidence from victims. Now that favorable immigrant benefits are apparent, immigrants should seize this moment to expose and not be victimized by unauthorized immigration consultants. And, hopefully, as comprehensive immigration reform reaches a crescendo, notarios will find no more willing victims.
The bill provides for legalization that is conditioned upon securing the Southern Border. The proposed bill requires the DHS Secretary to put in place certain controls known as Southern Border security and fencing strategies within 180 days after the enactment of the bill. Initially, an undocumented immigrant will be adjusted to a “Registered Provisional Immigrant” (RPI) status, which will happen only after the DHS Secretary has submitted to Congress a Notice of Commencement (after the completion of each of the Southern Border security and fencing strategies). The bill also provides for the adjustment of status of those who were granted RPI status after the DHS Secretary submits a written certification to the President and Congress that the border security strategy is substantially operational, fencing has been implemented and substantially completed, a mandatory employment verification system has been implemented, and electronic exit system has been put in place. These suggest that the path to legalization and citizenship will take years although DREAMERS and agricultural workers will be subject to a less rigorous procedure. However, in the process of waiting, aliens who are granted RPI status will be able to enjoy certain benefits including work authorization and the ability to travel outside the U.S.
In essence, the bill provides for various benefits, including: legalization; a guest worker program to bring farm workers over the next decade; increased number of visas for professionals; a new visa program for house cleaners, landscapers, and other low-skilled occupations; a mandatory employment eligibility verification program; it eliminates the backlog for family and employment-based immigrants; it creates a start up visa for foreign entrepreneurs; it provides for a merit based visa, using a point system, which will accelerate pending family- based and employment-based petitions beginning on October 1, 2014; unfortunately, the sibling category for family based immigration and the visa lottery program will be phased out.
Below is a summary of the proposal which members of Congress will flesh out and analyze until a final bill is reached and enacted:
Adjustment of Status to Registered Provisional Immigrant (RPI) Status
Who will qualify for RPI status?
- • pay $500 penalty (except for DREAM Act eligible students), cost of processing and assessed taxes per adult applicant
- • not convicted of a felony, aggravated felony, 3 misdemeanors, offense under foreign law
- • must not have unlawfully voted
- • not inadmissible for criminal, national security, public health or other morality ground
- A. Those who have been continuous physical present since December 31, 2011 may adjust to RPI status if the following criteria are met:
B. Individuals who were previously in the US before December 31, 2011 who were deported for non-criminal reasons:
- • Allows re-entry on RPI status if the applicant is the spouse or parent of a child who is a US citizen, lawful permanent resident or a child who is considered a childhood arrival who qualifies for the DREAM Act.
C. Individuals in removal proceedings or those with removal orders will be permitted to apply for RPI status
What can immigrants in RPI status do?
- • May petition spouse and children who are physically present in the US as derivative beneficiaries
- • Can work and travel outside the US
- • Not eligible for any federal means-tested immigration benefit
- • Are considered in lawful immigration status while in the US but not entitled to premium tax assistance and subject to the rules of the Affordable Care Act pertaining to individuals who are not lawfully present
- • May adjust status to that of a lawful permanent resident if the following conditions are met:
- ° They have maintained continuous physical for 10 years; DREAM Act beneficiaries and Agricultural Workers may apply after 5 years; DREAM Act children may apply for naturalization immediately after receiving their green cards
- ° They paid all taxes owed during the period that they are in status as an RPI
- ° They worked in the United States regularly;
- ° And demonstrated knowledge of Civics and English
- ° The pay the penalty of $1,000
- ° Only after all those who are awaiting their priority dates when the law is enacted have had their priority dates become current
- Adjustment of status will be based on the new merit based visa system for employment and family-based petitions and certain long-term alien workers
Validity of RPI status
- • Initial 6-year term
- • Renewable if the immigrant does not commit any acts that would render the alien deportable; $500 penalty fee is applicable at renewal
Legal Immigration and Merits Based Visas
- • The current family based preference system will be revised into TWO family based preference categories:
- • unmarried adult children; married adult children who file before age 31, and unmarried adult children of lawful permanent residents
- • Married sons and daughters of US citizens who are under 31
- • Siblings of US citizens are no longer be eligible for a visa 18 months after enactment of this legislation (this needs clarification as to whether sibling petitions will cease to be accepted while those that are currently pending will be continue to be processed)
- • Petitions for Spouses and minor children of LPRs will be automatically converted to Immediate Relative status (meaning visas will be immediately available to them)
- • Diversity Visa Program (visa lottery program) is repealed after 2014
- • Following are EXEMPT from employment based immigration numerical limitations:
- ° derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians..
- New employment visa numerical allocation:
- ° 40% = members of the professions holding advanced degrees whose services are sought in the sciences, arts, professions, or business by US employer AND aliens who have earned a master’s degree or higher in a field of science, technology, engineering or mathematics from an accredited U.S. institution of higher education and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed.
- ° 40% = skilled workers, professionals, and other professionals
- ° 10% = certain special immigrants
- ° 10% = those who foster employment creation
- • New visa category of foreign entrepreneurs who want to start their own companies in US
- • Merit Based Immigrant Visa
- ° After 5th year post enactment, there will be a points system where a certain number of points will qualify you for a visa. Points are awarded based on employment, education, length of residence, etc.
- ° Beginning 10/2014, these Merit Based Visas will be allocated to employment based visas pending more than 3 years, family based petitions pending more than 5 years, and long term alien workers
- ° Long term alien workers includes those who are lawfully present for more than 10 years and not on the new W visa
The e-Verify system is a quick way of determining the identity and employment-eligibility of a worker. The Act requires participation in a mandatory e-Verify system which requires employers to be phased in over a period of time depending on their size. The e-Verify phase-in is expected to be completed over a 5-year period. Every non-citizen worker will be required to present their “biometric work authorization card” or their “biometric green card. The picture on the worker’s card must match the photo stored in the e-Verify system; the employer must certify that the photograph presented in person matches the photograph in the e-Verify system.
The enhanced e-Verify system also provides a capacity for additional security to ensure that employees can “lock” their social security number in the e-Verify system and have the ability to check their own e-Verify history to determine improper use of their social security number and alert officials.
Lastly, due process requirements under this system will ensure that workers will not be prevented from working due to errors in the system or because of employer misconduct or negligence.
Temporary Visas: H-1B Visa Reform
- • The Act focuses on H-1B visa reform which raises the cap from 65,000 to 110,000 (which could increase up to 180,000 or decrease based on a “high skilled jobs demand index”)
- • The Act amends the additional visas allocated to graduates of U.S. advanced degrees by increasing the number to 25,000 visas for advanced degree graduates in science, technology, engineering and mathematics from U.S. schools
- • The Act requires recruitment of American workers and ensures that American workers are not displaced, i.e. by requiring employers to pay higher wages to H-1B workers; cracking down on abusers of the H-1B program; and barring employers from giving preference to H-1B and OPT workers over American workers.
- • H-1B spouses may be eligible to work as long as the parent country will provide the same eligibility to spouses of US workers
- • It will be easier for students to attend Bachelor’s degree programs or higher in the U.S. and they will be granted dual intent visas (recognizing the possibility that they may apply for an H-1B visa after completion of education and eventually apply for permanent residence in the future).
W-Visa Program for Lower-Skilled Workers:
The bill proposes the creation of a bureau with USCIS to administer this program and responsible for designating shortage occupations and annual caps (quotas), and make recommendations based on certain methodologies.
What is the W nonimmigrant visa program and who can be W-visa holder?
- • A W nonimmigrant is an alien having a foreign residence who will come to the US to perform services for a registered employer in a registered position.
- • An alien applies to be a certified alien at the US Embassy or Consulate after passing a criminal background check, if hired by a registered employer for employment in a registered position in a location that is not an excluded geographic location.
- • The spouse and minor children of the W visa holder may accompany or follow to join and will be given work authorization.
- • W nonimmigrant status may be granted for an initial period of three years and may be renewed for additional three year periods. The worker must commence work within 14 days after initial admission. The W nonimmigrant visa holder may not be unemployed for more than 60 consecutive days and must depart the US if he or she is unable to obtain employment.
Who is a registered employer?
- • A registered employer applies for such a designation and submits documentation to demonstrate that it is a bona fide employer. The employer must submit the estimated number of W nonimmigrant worker to be employed each year, the anticipated dates of employment and a description of the type of work to be performed.
- • The term of registration is for a period of three years, renewable for an additional three year period.
What is a registered position?
- • The position will be a registered position after the registered employer submits an application for such a designation.
- • The registered position must be for a position in an eligible occupation and the registered employer must meet the advertising requirements.
What are the additional conditions and requirements?
- • Wages to be paid should be either the actual wage paid to other employees with similar experience and qualification or the prevailing wage whichever is higher
- • Fees related to the hiring of a W nonimmigrant must be paid by an employer and may not be deducted from the W worker’s wages; the employer is not obligated to pay for the W worker’s cost of round trip transportation and passport.
The Agricultural Job Opportunity, Benefits, and Security (AgJOBS) Act
Current undocumented farm workers may obtain legal status through an Agricultural Card Program.
Aliens who will be eligible under this program are those who have made substantial prior commitment to agricultural work in the U.S., have proof of paying taxes, have not been convicted for any serious crime, and able to pay a fine of $400. They will become eligible for adjustment of status and their spouses and children will qualify as derivative beneficiaries.
When the guest worker program is in place, the current H-2A program will sunset and it will be replaced by two types of visas: W-3, an at-will employment-based visa, and a contract-based W-2 visa.
By: Mary Carmen R. Madrid-Crost, Esq.*
*Mary Carmen R. Madrid Crost is the founder and Principal of the Madrid Crost Law Group. Inspired by her own personal experience as an immigrant with a working visa, Ms. Madrid Crost vowed to help fellow immigrants by concentrating her practice in immigration law. She can be reached as follows: by phone at (312) 857-0857; via e-mail at firstname.lastname@example.org; via skype at usvisalaw. More information is available by viewing Ms. Madrid Crost’s profile at www.avvo.com, and by visiting the law firm web site at www.madridcrost.com.
Ms. Madrid-Crost serves as the 2012-2013 Chair of the National Consumer Protection and Unauthorized Practice of Law Action Committee of the American Immigration Lawyers Association (AILA). Her goal is to actively raise consumer awareness about the perils of unauthorized practice of law as an important component in the fight against notario fraud. Ms. Madrid-Crost is admitted to the bar of the state of New York. She earned her Master of Laws degree from The George Washington University’s National Law Center in Washington, D.C., a Post-Baccalaureate degree in Law and a Bachelor of Arts in Economics degree, both from the University of the Philippines. After graduation from the University of the Philippines’ College of Law, Ms. Madrid-Crost earned a scholarship to attend the Human Rights Program of the Institut International Des Droit De L’Homme in Strasbourg, France and served as an intern at the Human Rights Department of the Council of Europe. Ms. Madrid-Crost had spoken at conferences and seminars on immigration-related issues. She was a member of the faculty on business immigration at the International Conference on Employment and Immigration Law, which was held in Valle Nevado, Chile, under the auspices of the Center for International Legal Studies.
Ms. Madrid-Crost is one of the founders and Past President of Chicago’s Filipino American Bar Association (FABA). She has been active in several Asian organizations and, as a way of giving back to the community, she writes on a variety of U.S. immigration-related topics for the Filipino American Community Builder, Pinoy, and the Guam Pacific Daily New.