On Wednesday April 16, 2013, eight senators known as the “Gang of 8” presented the awaited Border Security, Economic Opportunity, and Immigration Modernization Act.  The Gang of 8 is composed of Senators: Marco Rubio (R-FL), John McCain (R-AZ), Bob Menendez (D-NJ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Michael Bennet (D-CO), Jeff Flake (R-AZ), and Chuck Schumer (D-NY), who is the principal drafter of the Bill.  The proposed Act is the result of a bipartisan effort in the U.S. Senate that has been coming together since January of this year.  As suggested by its title, the Senate Bill is an attempt to modernize existing immigration laws.  Part of this modernization is to include a pathway to citizenship for undocumented immigrants. A path to citizenship is something that immigration rights advocates have long been lobbying for to members of Congress.  But according to these advocates and other critics, the Bill is not by any means perfect.  Supporters of immigration reform would have liked the Bill to be less stringent. Despite its apparent imperfections, immigration rights advocates also assure that the Bill is better than any other past effort at comprehensive immigration reform.  The last attempt at immigration reform was in 2007 during the second administration of former President George W. Bush.

  • How is the Senate Bill Divided?
    • Border Security
      The first major part of the Bill covers border security at the southern border with Mexico.  Border security is further divided into two parts: (a) a security strategy and (b) a fencing strategy.

      • Comprehensive Border Security Strategy
        To achieve border security, the Bill proposes that the Department of Homeland Security implement the Comprehensive Southern Border Security Strategy.  This strategy would call for an expenditure of 3 billion dollars for an additional 3,500 Border Patrol agents and Customs and Border Protection Officers and additional surveillance capabilities, including aerial surveillance at high-risk sectors along the southern border.  A high-risk sector is identified as an area where there have been are more than 30,000 apprehensions per fiscal year.
      • Southern Border Fencing Strategy:
        An additional 1.5 billion dollars would be spent to fund and identify where additional fencing and surveillance technology shall be establishing along the Southern border. This part of the border security portion of the Bill would be known as the Southern Border Fencing Strategy.
      • What Are the Goals of the Border Security Strategies?
        The Secretary of the Department of Homeland Security (“DHS”) would be required to implement both border security strategies within 180 days after the enactment of the Bill. The goal of both strategies is to achieve 90 percent effectiveness rate in securing the southern border within 5 years of the enactment of the Bill.  The proposed effectiveness rate is achieved by dividing the number of apprehensions and turn backs at specific border sectors by the total number of illegal entries within a fiscal year. If such goal were not achieved, a Southern Border Security Commission would be established. The commission would then write and submit a Report and Recommendations within 180 days of its creation. If no such report and recommendations is submitted, the DHS would be required to create a new Border Security Plan to achieve the goal of 90 percent effectiveness in security of high-risk sectors.
      • How Do the Border Security Strategies Relate to Adjustment of Status?
        These security strategies would have implications on the eligibility for adjustment of status. According to the Bill, certain eligible undocumented immigrants would be allowed to adjust to the legal status of Registered Provisional Immigrant (“RPI”). However, no undocumented immigrant would be allowed to adjust to RPI status until the Secretary of the DHS submits to Congress a Notice of Commencement on a completed Comprehensive Southern Border Security Strategy and Southern Border Fencing Strategy.  Similarly, immigrants with RIP status would be ineligible to adjust to Lawful Permanent Resident (“LPR”) status until the Secretary of the DHS submits to the President and Congress certification that: (i) the Comprehensive Southern Border Safety Strategy is implemented in substantially operational; (ii) the Southern Border Fencing Strategy is implemented and substantially complete; (iii) a mandatory employment verification system has been implemented for the use all employers and to prevent unauthorized works from obtaining employment in the United States; and (iv) the Secretary is using an electronic exit system that reads visa and passport information at air and sea ports. This certification requirement would not apply to immigrants eligible under the DREAM Act.
    • Legalization of Undocumented Immigrants in the U.S.
      The second part of the Senate Bill describes the conditions and requirements for the legalization of otherwise unlawful immigrants. This is the section of the Bill that would most likely create a path to citizenship for undocumented immigrants.

      • Legalization: Adjustment to Registered Provisional Immigrant Status (RPI)
        Under the proposed Senate Bill, individuals in unlawful status would be allowed to apply with U.S. Citizen and Immigration Services (“USCIS”) to adjust to the legal status of Registered Provisional Immigrant (“RPI”).

        • What Are the Proposed Eligibility Requirements for RPI Status? To be eligible for RPI status, the applicant would need to comply with the following:
          • Have established residence in the United States prior to December 31, 2011 and maintained continuous physical presence since that date; and
          • Pay a $500 penalty and assessed taxes, plus applicable fees to the USCIS for processing of the application. Immigrants eligible under the DREAM Act are exempted from paying the $500 penalty.
        • An individual would NOT be eligible to adjust to RPI status if he or she has been:
          • Convicted of an aggravated felony;
          • Convicted of a felony;
          • Convicted of 3 or more misdemeanors;
          • Convicted of an offense under foreign law;
          • Unlawfully voted; and
          • Deemed inadmissible for Criminal, National Security, Public health, or other morality grounds.
        • What Would Be the Application Period for PRI Status? The application period to adjust to RPI status would be open for one (1) year that could be extended for an additional year.
        • Who Else Would Be Eligible for RPI Status? Immigrants applying for RPI status would be allowed to include their spouses and children as derivatives in their principal application, so long as the spouse and/or child(ren) were present in the United States at the time of the application.
        • Furthermore, individuals with removal orders or in removal proceeding would qualify to apply for RPI status.
        • Finally, individuals who are outside the United States but had previously resided in the U.S. prior to December 30, 2011 and were removed for non-criminal reasons would also be allowed to apply for PRI status if they have spouse, parent, or child who is a U.S. citizen or legal permanent resident (“LPR”), or are a childhood under the DREAM Act.
        • How Long Would RPI Status Last? The Registered Provisional Immigrant Status would last for six (6) years. After six (6) years, RPI status would be renewable if the individual with RPI does not commit any act that would him or her deportable. A new $500 penalty will be charged for the renewal.
        • What Would Be Benefits of RPI Status? An immigrant with RPI status would be considered to be legally present in the U.S. for all purposes, except that the immigrant would be eligible for federal means-tested public benefits and certain tax credits.
        • Additionally, an immigrant in RPI status would be eligible to work in the U.S. for any employer.
        • Finally, immigrants with RPI status would be allowed to travel outside of the United States.
      • Legalization: Adjustment from RPI Status to LPR Status
        Under the proposed Senate Bill, immigrants in RPI status would qualify to adjust to Legal Permanent Resident status after ten (10) years of being in RPI status and if he or she:

        • maintained continuous physical presences for the 10 year of RPI status;
        • paid all taxes while in RPI status;
        • worked in the U.S. regularly;
        • demonstrated knowledge of civics and English;
        • had a priority date that was current if waiting for adjustment under a family-based or employment-based petition as of the enactment of the act; and
        • paid the required $1000 penalty.
      • Citizenship Under the RPI Process
        The proposed Senate Bill does not mention when immigrants who gained LPR status after going through the RPI process will become eligible for U.S. citizenship.   Under current immigration law, the majority of qualifying Legal Permanent Residents are eligible for citizenship after five (5) years of obtaining LPR status. Legal Permanent Residents who are the spouse of a U.S. citizen are eligible for citizenships after three (3) years of obtaining LPR status.  A reading of the proposed RPI to LPR process suggests that immigrants who adjust to LPR status after having adjusted to RPI status will likely become eligible for citizenship immediately upon obtaining LPR status.  That is, ten (10) years after the immigrant obtained RPI status and successfully adjusted to LPR.
      • Legalization: Special Rules for DREAMERS and Agricultural Aliens
        The Senate Bill proposes some special rules for the legalization of immigrants eligible under the DREAM Act and agricultural immigrants.  Under the DREAM Act, DREAMERS do not currently have legal status.  Rather, DREAMERS only have employment authorization.  In order to obtain legal status, the proposed Senate Bill would allow DREAMERS to apply for RPI status.

        • First, immigrants eligible under the DREAM Act adjusting to PRI status are exempted from paying the $500 penalty.
        • Second, immigrants eligible under the DREAM Act and agricultural immigrants would NOT need to wait for DHS to present certification indicating that the Border Safety Strategies to be sufficiently operational and substantially completed to adjust from RPI status to LPR status.
        • Third, DREAMERS and agricultural immigrants would be eligible to adjust from RPI status to LPR status in five (5) years instead of ten (10) years required for immigrants adjusting under standard RPI to LPR process.
        • Finally, DREAMERS would be eligible for U.S. citizenship immediately after obtaining LPR status, or five (5) years after having obtained PRI status.
    • Legal Immigration
      The third part of the Bill covers proposed changes to the existing legal immigration process.

      • Family-Based Immigration
        The Bill proposes specific changes to family-based legal immigration. The proposed changes are said to be an attempt at reducing the backlog under the current immigration process.

        • First, the definition of “Immediate Relative” would be expanded to include the spouses and children (unmarried under age 21) of Legal Permanent Residents. The proposed definition does not include the parents of Legal permanent residents. Currently, the definition of Immediate Relative only includes the spouse, child (unmarried under 21), or parent of U.S. citizen.  It is worth noting that parents of LPRs are not included in the definition of immediate relatives. Similarly, there is currently no established family-based category for parents of LPR.
        • Second, the existing family-based categories would be reduced from four (4) categories to two (2) categories.  The new proposed categories would be as follows:
          • Category 1: Unmarried adult (age 21 and older) children of U.S. citizens and married children of U.S. citizens who are under the age of 31.
          • Category 2: Unmarried adult (age 21 and older) children of Legal Permanent Residents.
          • It is unclear whether the first category would allow married adult children of U.S. citizens to included their spouse and children as derivatives.
          • Finally, the category for siblings of U.S. relatives would be eliminated after 18 months of being enacted.
      • Employment-based immigration
        • In the employment-based categories there would also be changes.  Specifically, the Bill proposes to eliminate numerical limits for the following group:
          • Derivatives of employment-based immigrants;
          • Aliens of extraordinary ability in the sciences, arts, education, and athletics;
          • Outstanding professors and researches;
          • Multinational executives and managers;
          • Doctoral degree holders in any field; and
          • Certain physicians.
        • Essentially, forty percent (40%) of all employment-based visas would be allocated to two main groups:
          • Aliens holding advance degrees or equivalent and whose services are sought in the sciences, arts, professions, or business by a U.S. employer.
          • Aliens who have earned a Masters degree or higher in a field of science, technology, engineering, or math from an accredited U.S. institution of higher education and have an offer of employment in a related filed and the degree was earned five (5) years immediately before the employment-based petition was filed.
        • Other employment-based categories would remain unchanged; and a visa for foreign entrepreneurs would also be created.
      • Diversity Visas Eliminated
        • Under the proposed Bill, the diversity visa program would cease to exist. However, those aliens who are eligible for visas under the program during the 2013 and 2014 fiscal years would still be allow to receive visas.
      • Merit-Based Visa
        • The Bill calls for the creation of a merit-based visa five (5) years after its enactment. The visa would award points based on education, employment, length of residence, and other consideration, such as family ties in the U.S. There would be 120,000 merit-based visas available per year, with individuals with the most votes earning the visas.
    • The proposed Senate Bill is now being debated by the Senate Judiciary Committee. While the Bill is being reviewed in the Judiciary Committee, the committee members may make amendments to the Bill.  If the Bill receives the majority of the committee members’ votes, the Bill will go to the Senate floor.  In the Senate floor, it will require at least 60 votes to pass.  If it gains the required 60 votes for passage, the bill will be forwarded to the U.S House of Representatives, where it will go through a similar process.
    • Further amendments to the Bill are surely to follow, especially as the Bill faces the scrutiny of the opposition — U.S. House and U.S. Senate Republicans.  The U.S. House of Representatives has yet to draft its proposed Bill on the House floor.  It is expected that the House will present its own version of a Bill soon.
    • A new immigration law will not actually be enacted until it is passed by both house of Congress and presented to President Barack Obama for signature.
  • Summary and ConclusionIn summation, the Bill is has two initial phases. The first phase is establishing a process for securing the southern border with Mexico. Once such a plan is established, the second phase would go into effect. The second process is a legalization process for undocumented immigrants and implementing changes to the existing legal immigration system.As part of legalization, undocumented immigrants would first need to register as provisional immigrants. The RPI status would provide otherwise undocumented immigrants with legal status and employment authorization. Most importantly, it would allow access to travel outside the U.S. After 10 years of being registered and meeting other qualifying criteria, they could then become legal permanent residents.Major changes would occur to family-based legal immigration. Specifically, the Bill would remove an entire category for siblings of U.S. citizens. There would also be an age limit on petitions for married sons or daughters of U.S. citizens.  A category for spouses and children of Legal Permanent Residents would be eliminated and added to the non-preference category for immediate relatives.

    On the other hand, most employment-based immigration would remain unchanged.

    One final proposal of the Bill worth mentioning relates to the E-Verify system. Under the proposed Bill, all employers would be required to use E-Verify; and the E-Verify system would be revamped to include a lock feature for social security numbers and biometric photos on employment authorization cards that matches the photo in the E-verify system. Individuals would also have access their E-verify history or profile for their personal review.

    Although some sections of the proposed Bill may fulfill the goals of the bill in terms of legalization and modernizing the current system, there are still many gaps to be filled.  These gaps will hopefully be addressed and filled as the Bill moves along in the legislative process.

    This posting does not cover all of the proposed new laws and changes to the existing immigration system. For a detail review of the proposed Border Security, Economic Opportunity, and Immigration Modernization Act, go to the following link: http://www.aila.org/content/fileviewer.aspx?docid=44069&linkid=260326.