Fragomen on Immigration: Legalizing the Undocumented Population: Some Simple Suggestions

A recent report authored by Stuart Anderson of the National Foundation for American Policy—which scrutinized the Senate’s comprehensive immigration reform bill (S. 744) and the House Republicans’ one-page “Standards for Immigration Reform”—analyzed the common ground that might lead to bipartisan legislation that would include a path to lawful status for the currently undocumented population. A key area of disagreement is the extent to which undocumented immigrants should or should not be provided with some kind of special path to permanent residence or citizenship. A solution might be to make a few simple changes to existing law that would allow unauthorized immigrants to utilize existing channels to legalize their status. Using Anderson’s analysis and statistics as a jumping off point, and drawing on our own decades of experience in immigration law, we hereby suggest the following:

• Create a Provisional Lawful Status. Provide unauthorized immigrants (who are not otherwise inadmissible because of criminal convictions or for other reasons) with some kind of provisional lawful status (such as the “Registered Provisional Immigrant” status set out in the Senate bill) that would provide them with a work permit and a travel document authorizing re-entry after travel outside the United States. Such a status would be analogous to the Temporary Protected Status (TPS) already available for humanitarian reasons, but would be of longer duration.
• Encourage Provisional Immigrants to Adjust Status Through Regular Channels. Allow individuals granted provisional lawful status to apply for permanent residence based on sponsorship by a qualifying family member or an employer, as provided for in existing law. To make this workable, three small changes should be made to the Immigration and Nationality Act:
• Provide a waiver of INA § 245(a) for persons who are granted provisional lawful status, so that entry without inspection is not a bar to adjusting status to permanent residence in the United States;
• Reinstate INA § 245(i), which allows persons otherwise eligible to adjust their status to permanent residence based on sponsorship by a family member or an employer to do so—even if they are not currently in authorized immigration status and even if they have been employed without authorization—upon payment of a penalty fee.
• Provide a waiver of INA § 212(a)(9)(B) for persons who are granted provisional lawful status, so that they are not subject to the bar to returning to the U.S. after travel abroad that normally attaches to noncitizens who were unlawfully present in the United States for more than 180 days but less than one year (three-year bar) or for more than one year (ten-year bar).
• Create More Employment-Based Immigrant Visas. Increase the number of employment-based immigrant visas available each year by:

1. Recapturing unused immigrant visas numbers from 1992 to 2013 and injecting them into the system over a period of several years;

2. Counting only principal immigrants (not dependents) against the annual numerical limit;

3. Exempting several categories of employment-based immigrants from the annual quota and from annual per-country limits, including all foreign nationals in the EB-1 category (foreign nationals of extraordinary ability, outstanding professors and researchers and multinational managers and executives); foreign nationals with a U.S. doctoral degree or a foreign degree equivalent; and foreign nationals with a U.S. master’s degree or higher in a STEM field earned in the five years preceding the filing of an immigrant visa petition based on a job offer in a field related to the degree;

4. Increasing the number of immigrant visas in the “other workers” category from its current 5,000¹ to 20,000 per year; and

5. Raising the current overall 140,000 annual limit on employment-based immigrant visas.

• Expand the Definition of “Immediate Relative.” Currently, the spouses, parents and minor children of U.S. citizens can immigrate without any annual numerical limits. Re-classifying the spouses, parents and minor children of lawful permanent residents as immediate relatives would similarly enable the spouses, parents and minor children of provisional immigrants to become permanent residents when the principal provisional immigrant adjusts status to permanent residence.
• Implement a “DREAM Act” or “KIDS Act.” This one is easy, since Democrats and Republicans seem to agree on the basic concept: provide a means for undocumented young people who were brought to the United States as minors to adjust status to permanent residence provided they meet certain obligations, such as attending college or serving in the military.

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