On April 17, 2013, a bipartisan group of senators filed the “Border Security, Economic Opportunity and Immigration Modernization Act” bill in the U.S. Senate in an effort to start the process of reforming the nation’s immigration system. The bill’s broad scope and sensible approach are impressive. However, since the bill is a compromise proposal that balances competing interests, not everyone is happy. The New York Times, for example, lamented the bill’s spending proposals but it was cautiously optimistic about the legalization program, which it described as the heart and soul of the bill.
We will discuss this legalization program but please understand that it is a mere proposal in its earliest stages. A lot could change in the coming months as lawmakers scrutinize the program. Please do not act or make plans based on mere proposals. The purpose of this article is to inform those interested in immigration reform so they may follow fast-moving developments and perhaps add their voice to the ongoing debate.
The bipartisan senate bill allows undocumented aliens currently in the country to apply for the new Registered Provisional Immigrant (RPI) status if they meet the following requirements: (1) were physically present in the U.S. on or before December 31, 2011; (2) have maintained continuous physical presence in the U.S. from December 31, 2011 until the time they are granted RPI status; (3) must not have been convicted of a felony, aggravated felony, 3 or more misdemeanors, foreign offense that would render then inadmissible or deportable, or unlawful voting; (4) must be admissible under INA 212(a) but with exceptions and waivers; (5) must not be in lawful permanent resident (LPR), refugee, asylee, or valid nonimmigrant status; (6) must first pay all tax liabilities; (7) must pay filing fee and $1000 penalty; and (8) must apply within the designated 1 year period. Aliens in removal proceedings, as well as those already ordered removed or granted voluntary departure, may apply for RPI status.
The main obstacles to attaining RPI status are criminal convictions and conduct that makes an alien inadmissible under INA 212(a), which enumerates all disqualifying convictions and conduct. However, the bill provides exceptions and authorizes waivers for non-exempted grounds. For example, the bill exempts aliens who entered without inspection and allows them to apply for RPI status. It also exempts those who committed misrepresentation, including those who made a false claim to U.S. Citizenship. It exempts aliens who returned to the U.S. illegally after being deported. Allowing false claimants to U.S. Citizenship and deportees who re-entered to apply for RPI status is a generous gesture because these aliens are generally barred from relief under current laws.
The bill also authorizes waivers for aliens who have 3 or more misdemeanor convictions. However, the bill draws a bright line on serious offenses and does not authorize waivers for offenses such as drug trafficking, human smuggling, terrorism, unlawful voting and misrepresentations in the RPI application.
If the application is approved, the alien will have RPI status for a period of 6 years and it may be renewed for another 6 years. RPI status allows an alien to work in the U.S. and travel abroad. It also allows the alien to apply for LPR status under the following conditions: (1) alien must have maintained continuous physical presence during RPI status; (2) must have paid all taxes due; (3) must have been regularly employed during RPI status or have attended school; (4) must show English language skills; (5) may only adjust to LPR status after visas are available to all immigrant petitions filed prior to the enactment of the law; (6) may only adjust to LPR status after at least 10 years of lawful presence; (7) may only adjust status under the provisions of the new merit-based track two immigration; (8) not eligible for a merit based visa until 10 years after the enactment of the law; (9) must pay $1000 penalty before adjusting to LPR. If you’ve noticed, there’s a strong emphasis on having RPIs go to the “back of the line” by imposing a 10-year wait time.
It’s anticipated that this legalization program would benefit millions of undocumented aliens but it’s not for everyone. Those who have other means of immigrating are better off applying through other means. For example those who qualify for an I-601A provisional waiver should apply because they could get LPR status right away. Those who are eligible for deferred action for childhood arrivals (DACA) should apply because the senate bill has special provisions that allow DACA recipients to obtain RPI status easier and LPR status faster. Those LPRs in removal proceedings may not qualify because they still have valid status even though they are in proceedings. Those who are in valid nonimmigrant status should maintain status because they would have more immigration options than they would otherwise have if they choose the RPI way which would put them at the back of the line. Next time we’ll discuss the other provisions of the bill.
