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

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

Crossposted at HuffPost

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, which would allow anyone who was brought here before the age of 16, a five-year pathway to citizenship. Undocumented youth who already deferred action for childhood arrivals would be grandfathered under the Registered Provisional Immigrant Status to streamline the process for them,
  • Asylum – No one-year filing deadline for asylum and the ability to file a motion to reopen if asylum claim was denied merely due to one-year bar issues for someone who was granted withholding of removal. This section also permits qualified stateless individuals to apply for lawful permanent resident status within a year.
  • 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 to control future flow of immigration
  • 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 basically means that children who have been aged out of petitions filed on behalf of their parents because they turned 21 while waiting in line will get credit for waiting in line, and get their green-cards soon after their parents. Hopefully, this puts an end to the ongoing litigation now at the Supreme Court.
  • International adoption harmonization allows adoption of foreign-born children up to the age of 18 (as opposed to 16 currently)
  • Relief for orphans and widowed spouses – Those spouses and children of deceased U.S. citizens 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 children for purpose of obtaining a green-card 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 family members 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. This means there is no wait time for the children and spouses of green card holders!
  • Naturalization: Waiver of English requirement for senior immigrant naturalization.
  • Immigration Court proceedings – Mandates, for the first time, immigration counsel appointed by law in removal proceedings for unaccompanied children, mentally disabled, and “particularly vulnerable aliens.”
  • Restoration of  judicial discretion to grant waiver in removal proceedings for people whose deportations would be against the public interest.
  • Lowering the bar from extreme hardship to hardship – Allows judges to grant waivers in removal proceedings for anyone whose removal would cause hardship (not extreme hardship) to U.S. citizen or lawful permanent resident parent, spouse or child.
  • Allocation of more immigration judges, more support staff and Board of Immigration Appeals personnel to deal with backlogs in Immigration Court.
  • Detention reform – “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 a registered position. Spouses and minor children are included and will receive work authorization. This is a 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 merits based lawful permanent residence.
  • 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 a green card  in five years.
  • Registered Provisional Immigrant (RPI) Status – a 10 year pathway to green card, followed by 3 year path to citizenship, meaning a 13 year pathway to citizenship. Denied applications under the program can be appealed and subject to 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 order of removal could obtain RPI status if they re-entered before Dec. 31, 2011.
  • Waivers would be available for persons to enter as as registered provision immigrants if they have already been deported if they have an immediate family member in the U.S. who is a U.S. citizen or green-card holder or eligible for the DREAM Act
  • Waivers for false claim to citizenship and misrepresentation, finally.
  • F-1 students – Authorization of dual-intent for student visas, such that international students can come here with the dual purpose of studying and establishing residence.
  • 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 dependents of H-1 workers if the country of origin reciprocates by giving 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 certain foreign doctors are exempt from the employment visa cap.
  • 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 lottery
  • Elimination of sibling visa, such that U.S. citizens can no longer petition for their siblings to come to the country.
  • Elimination of ability to petition married children over the age of 31,  such that U.S. citizens can no longer petition for their married children over 31 to come to the country.
  • No recognition of permanent partners or same-sex bi-national couples for immigration benefits
  • Registered provisional immigration status is tied to border security triggers for the vast majority of people
  • Persons in registered provisional immigrant status cannot become green card holders until immigrant visas became available for all approved petitions filed before the date of enactment.
  • Persons in registered provisional status may not be able to adjust their status in any other way for 10 years, though this is unclear.
  • Stringent requirements for persons in RPI status to adjust their status to green card holders, including no less than 60 days of unemployment at a time during the 10 years, though a waiver is available.
  • Persons in registered provisional immigrant status cannot qualify for healthcare, Medicaid, welfare or nutritional assistance.
  • Legalization fees and penalties may leave many behind.
  • Persons granted RPI status cannot qualify for merit-based visas until 10 years down the line
  • Initial 20,000 cap on W-visa workers quite low, and may not meet business needs
  • Everyone who entered the country and lost status after Dec 31, 2011, subject to detention and deportation (but can probably qualify for a hardship waiver if they have immediate family members who are U.S. citizens or lawful permanent residents or if their removal would not be in the public interest).
  • Very little chance of coming back to the U.S. for those already deported who have no immediate relatives here.
  • Lawfully present nonimmigrants will be ineligible for RPI, even if they violated their status or fell out of status, which is likely to create more undocumented immigrants in the future.

The Ugly

  • Mandatory E-verify for all businesses, which could turn into a national ID card system
  • Ramping up Southern border enforcement with allocations of over $4.5 billion.
  • New grounds of inadmissibility and deportability for anyone convicted as “member of “criminal street gang,” convicted for habitual drunk driving (3 or more DUIs), convicted related to domestic violence, child abuse, stalking, violation of  protection orders and failing to register as a sex offender.
  • Maintaining and increasing the civil and criminal penalties for illegal entry
  • Penalties for “hindering or obstructing immigration investigations”
  • Any information on application forms turned over to law enforcement for “a criminal investigation or prosecution of any matter not related to the applicant’s immigration status.”
  • Continued deportations for those who do not fit into the “good immigrant” box.
  • Maintaining the 3 year/10 year bars for unlawful presence and unlawful entry, thus, locking people in the country, while ramping up on locking them out
  • Maintaining aggravated felony bars, which subject hundreds of long-time residents to deportation each year
  • Maintaining mandatory detention
  • Maintaining the Secure Communities program

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.

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 two-tier merit-based system, start-up entrepreneur visas (INVEST), and the allocation of more employment-based visas such as H-1B would hasten the immigration of many Asians to America (mainly because the statistics tell us that more than 70% of existing high-skilled employment based visas already go to Asians) 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. I look forward to that challenge.

My major issue with the legislation is that it narrowly tailors the American dream to belong only to those who are privileged enough to obtain an education, obtain special skills and those who can clearly afford it, while further criminalizing immigrant populations and unnecessarily ramping up border enforcement. However, the good outweighs the bad in this legislation and without strong advocacy, the final legislation that would land on the president’s desk would be far worse.

We can and we must do better.

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

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