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Biden’s Immigration Reform Bill Offers Many Promising Changes to the Undocumented and Those Immigrants Applying Based on Family, Employment or Humanitarian Grounds

February 23, 2021
Pawel Boruch

At the end of last week, an immigration reform bill – “The U.S. Citizenship Act” of 2021 – was introduced in both chambers of Congress. The bill’s purpose is to “provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and other purposes”. The focal point of the bill is to provide a path to citizenship to millions of undocumented immigrants currently present in the United States. The general provisions of this bill follow the outline presented by President Biden’s administration on his first day in the office. The bill offers many promising changes, and the most significant of these include the following:

Lawful Prospective Immigrants (LPI)

  • -Undocumented immigrants would be able to apply for “Lawful Prospective Immigrant” (LPI) status if they have been physically present in the U.S. since January 1, 2021, filed an application, paid applicable fees, and passed background and security checks. If granted, LPI status would be valid for 6 years.
  • -Spouses and children would not need to file separate petitions and would be included in the principal’s filing.
  • -LPIs would be authorized to work in the U.S. and travel internationally, but they would not be able to remain outside the U.S. for more than 180 days in any given calendar year.
  • -LPIs would be considered lawfully present in the U.S., but they would not be eligible for some tax credits and some benefits under Affordable Care Act.
  • -If a prospective LPI was deported from the U.S. after January 1, 2017, but was physically present in the U.S. for at least 3 years before their deportation and did not re-enter the U.S. unlawfully since their deportation, their application for LPI status may be considered in the discretion of the Department of Homeland Security (DHS) based on humanitarian reasons, to ensure family unity, or if this would be in the public interest.
  • -LPIs would be eligible to apply for Lawful Permanent Resident status (i.e. a green card) after having LPI status for at least 5 years, with evidence of paying taxes and meeting other requirements.

The DREAMers

  • -A person who entered the U.S. before turning 18 would immediately be able to apply for Lawful Permanent Resident status, provided they have at least a high school diploma or its equivalency, have a college degree or had earned income for at least 3 years (at least 75% of that work with valid work authorization), had served in the Armed Forces for at least 2 years, and had registered for Selective Serviced (if required), and pay applicable fees and pass background and security checks.
  • -Spouses and children of people eligible to adjust status under this provision could also apply.

Temporary Protection Status (TPS) and Deferred Enforcement Departure (DED) Recipients

  • -TPS and DED recipients could apply for Lawful Permanent Resident status if they have been physically present in the U.S. since January 1, 2017, pay applicable fees and pass background and security checks.
  • -Spouses and children of people eligible to adjust under this provision could also apply.

Agricultural Workers

  • -Certain agricultural workers would be able to apply for Lawful Permanent Resident status if they performed agricultural work for at least 2,300 hour or 400 work days during the 5-year period immediately before their application, pay applicable fees and pass background and security checks.
  • -Spouses and children of people eligible to adjust under this provision could also apply.

Naturalization

  • -The proposed bill amends requirements for naturalization for certain applicants by reducing the residency requirement for Lawful Permanent Residents from 5 years to 3 years in cases where the green card holder was both lawfully present and eligible for employment authorization for at least 3 years before getting their green card.

Waiver of Inadmissibility

  • -In addition to the currently available waivers of inadmissibility (bars to getting a green card), which generally require the applicant to have a qualified relative who is either a U.S. citizen or Lawful Permanent Resident, the proposed bill creates new waiver ground, which can waive most grounds inadmissibility or deportability based on humanitarian, family unity and public interest considerations.
  • -DHS would have to consider the severity of the underlying circumstances, the duration of residence in the U.S., evidence of rehabilitation, and the adverse effect on family members.
  • -The proposed bill also amends the petty offense exception to the ground of inadmissibility related to crimes involving moral turpitude by expanding to include a maximum of two convictions for minor crimes (instead of just one) if the maximum penalty for each did not exceed 1 year and the noncitizen was not sentenced to imprisonment for more than 180 days for each crime.

Expungement and Sentencing

  • -The definition of conviction for immigration purposes would be changed to be more in line with the definition under criminal law. Any judgments of guilt that were dismissed, expunged, annulled, deferred, invalidated, or vacated would no longer be considered as convictions for immigration purposes. Currently, immigration law may consider it a conviction a crime which was dismissed, expunged, annulled, deferred, invalidated, or vacated.

Refugees

  • -The bill provides for many initiatives and cooperation in Central American countries to help with humanitarian responses to refugees and asylum seekers, but creating Designated Processing Centers where individuals seeking to apply for refugee status would be assessed for eligibility and their cases would be processed.

Temporary “V” Visa

  • -Beneficiaries of family-based petitions in preference-based categories subject to numerical limitations (i.e. unmarried/married sons and daughters of U.S. citizens, spouses and unmarried sons and daughters of Lawful Permanent Residents, and brothers and sisters of U.S. citizens) would be eligible to apply for a new V visa and be able to remain in the U.S. while awaiting for their priority date (place in line) to become current. Individuals with V status could apply for employment authorization, but would not be eligible for means-tested public benefits, qualified health plans tax credits or Affordable Care Act benefits.

Expand the Immigrant Visa System to Address Backlogs

  • -The proposed legislation plans to increase most of the family-based and employment-based limits of immigrant visas being issued in any fiscal year.
  • -Spouses and minor children of Lawful Permanent Residents would be classified as “immediate relatives” and therefore not subject to annual visa number limits, thus expanding visa numbers to those in other categories.

Promoting Family Unity

  • -The proposed bill would eliminate the current three (3) year and ten (10) year grounds of inadmissibility for those noncitizens who overstayed their stay in the U.S. by at least 6 months and then departed U.S.
  • The proposed bill would also amend the ground of inadmissibility related to individuals who make a false claim to U.S. citizenship by creating an exception for those who made the claim before they turned 21.

Inclusion of Permanent Partners

  • -The proposed bill would treat Permanent Partners the same as spouses for all immigration benefits applications.
  • -A Permanent Partner would include any adult in an intimate relationship with another adult, where the couple is financially interdependent, not married to or not in another permanent partnership with anyone else, and where the couple is unable to marry in their home country.

Reforming Employment-based Immigration

  • -Noncitizen graduates of doctoral studies in STEM fields (Science, Technology, Engineering Mathematic) would not be subject to numerical limitations on immigrant visas.
  • -Noncitizens who are beneficiaries of an approved I-140 immigrant petition, whose priority date is more than 10 years before their application for adjustment of status would also not be subject to numerical limits.
  • -Ability for DHS and the Department of Labor (DOL) to temporarily limit sponsorship (in EB-2 and EB-3 categories) in geographic areas or labor market sectors experiencing high levels of unemployment.
  • -F-1 student visas would become dual-intent, allowing for the student to intend on remaining permanently in the U.S.
  • -Children in H-4 status may be allowed to extend their H-4 status beyond age 21 if their parent maintains their H-1B status, preventing the children from aging out.
  • -All H-4 spouses and children would be eligible for an employment authorization document (EAD).
  • -Allow noncitizens in F, H-1B, L, or O statuses to extend their status in 1-year increments beyond the statutory limits, if either a PERM or employment-based immigrant petition (I-140) was filed for their benefit and is pending for more than 365 days.

Protection of Vulnerable Individuals

  • -The 1-year time limit to apply for asylum would be repealed.
  • -The annual cap for U visas would be increased from 10,000 to 30,000.
  • -Asylum applicants, U visa applicants, and T visa applicants would no longer have to wait 180 days after filing to apply for employment authorization.

If passed by Congress in its proposed version, the U.S. Citizenship Act of 2021 would significantly change the immigration system of the United States, provide a path to U.S. citizenship for many millions of undocumented immigrants who cannot otherwise obtain lawful status, and would help those who are in the process of immigrating to the United States, but are stuck in lengthy backlogs. At this point, however, this is just a proposed bill and it is uncertain if the bill will pass, if only certain provisions will pass, or even if it will not pass at all.

Please remember that until the bill actually passes both chambers of Congress and is signed into law by the President, you cannot yet apply for any of these benefits. At this point, there are only a few things you can do to prepare for the possibility of immigration reform. Please contact an attorney at Minsky, McCormick & Hallagan, P.C. if you have questions about the impact of the proposed bill on your immigration status.

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