By Attorneys Robert L. Reeves, Eric R. Welsh and Nancy E. Miller
On April 19, 2013, a bipartisan group of eight senators introduced a bill that proposes a wide-ranging renovation of the United States immigration system. The bill, titled “Border Security, Economic Opportunity, and Immigration Modernization Act,” (also commonly referred to as the “Immigration Reform Act” or “Comprehensive Immigration Reform”) would dramatically change the current laws and create new avenues of relief for millions of individuals who are currently in the U.S. without lawful status.
At this point, this is only a bill, not a law. The bill that was presented last week may undergo substantial transformations before it reaches a vote in the Senate and the House. Certain provisions may be eliminated or substantially rewritten in an effort to find compromise and consensus. Also, while this bill does have bipartisan support and the endorsement of President Obama, there will likely be vocal detractors in both houses of Congress who will try to defeat the bill. Vigorous debate is expected, and the bill’s passage is by no means assured.
For this reason, any person who is presently eligible for existing relief should continue to pursue that relief, and all presently available options (including the provisional waiver, cancellation of removal in immigration court, and deferred action under DACA) should still be considered.
If this bill passes, proposed changes to the immigration laws may result in the elimination of some relief that is currently available. For example, the bill proposes to eliminate the fourth preference category for family-based petitions (siblings of U.S. citizens), and proposes to set an age cap of 30 years on petitions for over-21-year-old sons and daughters of citizens and permanent residents. As such, any person that can file such a petition is well advised to file now before these options disappear.
The centerpiece of the bill is the creation of a new status called Registered Provisional Immigrant (RPI) status. A person with RPI status would not hold a green card, but would have work authorization, travel permission, and would not be removable from the United States.
To be eligible for RPI status, an applicant must have resided in the United States continuously since at least December 31, 2011, must pay all required income taxes (including back taxes that may be owed), and must pay a penalty fee (currently proposed to be $1,000.00) in addition to filing fees. RPI status will initially be valid for six years and can be extended for an additional six years if the applicant continues to be eligible, and can demonstrate that he or she maintained regular employment during the RPI period (including fulltime enrollment in school). A person who was previously granted protection under DACA may be granted RPI status under a streamlined process. Spouses and children may be included as derivative beneficiaries and will be entitled to RPI status if the principle applicant is eligible.
A person granted RPI may apply for a green card after being in RPI status for ten years. A person who obtains lawful permanent immigration status (green card) through this RPI process will be eligible for citizenship three years after obtaining the green card. Certain RPIs who entered the U.S. before the age of 16 and obtained high school or college degrees in the U.S. (i.e., “DREAMers”) will be able to adjust status to permanent resident after only five years. The Secretary of Homeland Security is authorized under the bill to institute streamlined adjustment procedures for “DREAMers” who previously received benefits under DACA. Persons who are currently in removal proceedings (immigration court) or who have a prior order of removal will be able to apply for RPI status.
Certain criminal bars do apply, although many grounds of inadmissibility are excused. An individual is not eligible if that individual has a conviction for any felony, any aggravated felony as defined by the Immigration & Nationality Act, three or more misdemeanors (including DUIs), certain foreign offenses, or unlawful voting. For the purposes of RPI, a “conviction” does NOT include a judgment that has been expunged or set aside. For this reason, any person with a criminal record should immediately consult with an experienced attorney to see if a conviction can be expunged or set aside.
The introduction of this bill is cause for cautious optimism, and persons who believe that they may be eligible for relief under this new bill should discuss their options with an experienced immigration attorney. If this bill becomes law, there will likely be a flood of applicants (some predict the new law will apply to more than 11 million persons in the U.S.), and eligible applicants are encouraged to discuss their case with an attorney now in order to prepare for the possibility of new relief.
