S.744: What Changes Will the 2013 Reform Bill Bring to U.S. Immigration Policy?

Despite hearing many things in the media about the 2013 Immigration Reform Bill, or S.744, many of those who the Bill will affect most are unaware of some of the main changes to U.S. Immigration Policy the Bill will have. Here, we hope to make interested parties aware of those provisions of the Bill most likely to have an affect on our clients.

The full name of the Bill is the Border Security, Economic Opportunity, and Immigration Modernization Act, or S.744. The Bill, written by a group of eight Senators, is intended to address all aspects of the immigration process from border and enforcement issues, to legal immigration reforms. The Bill passed the Senate vote on June 27, 2013; and many were left wondering what happens now? The short answer is that the Bill will now be sent to the House of Representatives for review. It is unlikely that the House will pass the Bill as is—but that doesn’t mean the House won’t simply suggest amendments, and work with the Senate to create a version both can agree on—eventually resulting in the Bill becoming law. For that reason, it’s a good idea to educate yourself on the various provisions, and how these provisions may affect you and your loved ones in the future.
The Bill is made up of five large sections (Titles), with many smaller subsections. The five main sections are I: Border Security; II: Immigrant Visas; III: Interior Enforcement; IV: Reforms for Non-Immigrant Visa Programs; and V: Jobs for Youth. Here, Titles II through IV will be briefly covered.

Title II: Immigrant Visas

The Registered Provisional Immigrant Program
Title II: A & B make changes to current U.S. immigration policy that create paths for undocumented immigrants currently in the United States, which allow them to show they’re eligible to legalize their immigration status and eventually obtain U.S. citizenship. For example, the Registered Provisional Immigrant Program will allow undocumented immigrants to apply for Registered Provisional Immigrant (RPI) status if they:

  1. Have been in the U.S. since December 31, 2011;
  2. Haven’t been convicted of a felony or three or more misdemeanors;
  3. Pay their assessed taxes;
  4. Pass background checks;
  5. Pay application fees and a $1,000 penalty; and
  6. Are admissible under current law (this excludes individuals who have committed certain offenses, participated in terrorist acts, or belong to some other excluded category).

 

Under the new RPI program, spouses and children of RPIs would also be eligible to apply for RPI status. Additionally, the RPI program is intended to reflect the special circumstances of some undocumented immigrants—certain grounds of inadmissibility that would usually disqualify large segments of the undocumented population won’t apply to RPI applicants. For example, the three and ten-year bars wouldn’t apply; and immigration judges would have greater flexibility in hearings to make case-by-case determinations involving minor criminal violations, to promote family unity, or in the public interest. Deportees are generally ineligible, but with S.744’s changes may be permitted to re-enter the U.S. and apply for RPI status if they meet all other requirements and have close relatives who are U.S. citizens or Lawful Permanent Residents.

Once someone has obtained RPI status it lasts for six years, and is renewable for an additional six years if the individual has remained regularly employed. There are, however, exemptions to the employment requirement for (1) full-time enrollment in school; (2) maternity leave; (3) medical leave; (4) physical or mental disabilities; (5) children under 21-years-old; and (6) extreme hardship. After obtaining RPI status, an individual may be able to apply for Lawful Permanent Resident (LPR) status (a green card) if they have been a RPI for at least ten years. Unfortunately, RPIs must “go to the back of the line,” and wait until all other applications submitted before S.744’s enactment have been processed before receiving permanent residency. LPR applicants must show that they (1) have maintained RPI status for at least ten years; (2) paid taxes; (3) meet English proficiency requirements; (4) passed an additional background check; and (5) paid application fees and an additional $1,000 penalty.

Those undocumented immigrants who opt to legalize through the Registered Provisional Immigrant track may apply for U.S. citizenship only after lawfully maintaining RPI status for ten years, and LPR status for three years. So, undocumented immigrants who legalize via the RPI track must wait 13 years before becoming citizens.

Undocumented Immigrants Who Arrive as Children
Under S.744, the DREAM Act would be a part of the Registered Provisional Immigrant Program, as a version of the Act has been incorporated into the program to address the special situation of many undocumented immigrants who entered the U.S. as children. Unlike other RPIs, DREAMers would be placed on an accelerated path to legal permanent residence and citizenship—the application process is the same except that DREAMers may apply for permanent residence after maintaining RPI status for only five years. In order to qualify, an applicant must have:

  1. Entered the U.S. before turning age 16;
  2. Maintained RPI status for at least 5 years;
  3. Earned a High School diploma or GED;
  4. Completed at least 2 years of college or 4 years of military service; &
  5. Passed an English proficiency test and background checks.

 

One of the big benefits of this process for DREAMers is that they may apply for citizenship as soon as they receive their green card (LPR status).

Legal Immigration Reforms
The Track 1: Merit-based Point System allows foreign nationals to obtain LPR status in the U.S. by accumulating points based on skills, employment history, and educational credentials. Additionally, this system eliminates and replaces the current immigration visa categories for siblings and adult married children of U.S. citizens, and the Diversity Visa Program. The point system is divided into two tiers: (1) Higher-skilled immigrants with advanced educational credentials and experience; and (2) less-skilled immigrants. Visa allocation according to this system will begin in 2018 with 50% of the visas allocated to tier one applicants with the highest number of points, and 50% of the visas allocated to tier two applicants with the highest number of points.
Points will be allocated based on a combination of factors, including education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality. Under this system there is no “passing score” needed to qualify; but immigrants who are young, educated, experienced, skilled, and fluent in English are prioritized. Unlike the current system, family ties and regional diversity are less-heavily weighted in application consideration—only a maximum of 10% of the total points may be assigned based on family ties.

The Track 2: Merit-based System is designed to clear out the backlog of current applicants by allocating visas to applicants with pending applications over the course of seven years beginning in 2015. Starting on October 1, 2014, family- or employment-based applicants whose applications have been pending five years or more under the current system will become eligible for a visa. The Track 2 System makes visas available to RPIs who have maintained that status for at least ten years.
Family-based immigration is altered under the Bill as well—there will no longer be an immigrant category for siblings of U.S. citizens, and visas will no longer be available to married children of U.S. citizens above the age of 30. Parents of U.S. citizens will be allowed to bring their minor children at the time they immigrate, and the Bill allows for immediate reunification for spouses and minor children of LPRs. Employment-based immigration would be improved by eliminating country-specific limits on employment-based immigrant visas—certain highly skilled and exceptionally talented immigrants would also be exempted from the worldwide cap, and spouses and children of employment-based immigrants would also be cap exempt.

Title III: Interior Enforcement
E-Verify
E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Under the Bill, E-Verify will be expanded and made mandatory for all employers over a period of five years. Employers will be required to confirm identity and employment authorization within three business days after the employee accepts the offer of employment. Additionally, a mandatory entry and exit system will be implemented at all air and seaports to help ensure that foreign nationals are leaving the U.S. when required.

Sanctions for non-compliance will be increased and enforced more seriously: civil fines for employers that have committed multiple violations related to hiring unauthorized immigrants will be increased up to $25,000 per violation. Criminal penalties include two years in prison for employers who have repeatedly hired unauthorized workers, in addition to fines of up to $10,000.
Within five years, all employers must use E-Verify: employers with more than 5,000 employees must use it within two years after the regulations are published; and employers with more than 500 employees must use it within three years. However, there will be an exception to E-Verify mandatory use for employment that is “casual, sporadic, irregular, or intermittent.”

Protections for Immigrants in Removal Proceedings
Under current immigration law, immigrants in removal proceedings initiated by the Department of Homeland Security don’t have the right to appointed counsel if they cannot afford to hire a lawyer. S.744 changes this in cases involving unaccompanied minor children, immigrants with serious mental disabilities, and other vulnerable individuals—under the Bill it would be required that a lawyer be appointed to represent these individuals.

The Bill also limits the use of solitary confinement and bars its use with children and the seriously mentally ill. The Bill provides for secure, humane alternatives to detention such as electronic monitoring; increases oversight of detention facilities; mandates prompt custody determinations and bond hearings; and provides guidelines for detention of parents and caregivers of children.

Penalties for Crimes
The Bill would make undocumented immigrants involved in gangs ineligible for RPI status; and makes immigrants inadmissible if they have been convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment for which the individual served at least one year in prison, or was convicted of more than one such crime. Moreover, the criminal penalties would be increased for illegal entry, visa fraud, passport fraud, and passport trafficking.

Title IV: Reforms to Nonimmigrant Visa Programs
Nonimmigrant Skilled Worker Visas (H-1B & L-1)

H-1B: Visa for foreign workers with at least a bachelor’s degree who come to work temporarily in a specialty occupation.

L-1: Visa for foreign workers who have gained essential experience abroad with a multinational employer that needs to transfer them to the U.S. temporarily to assist in their U.S. operations.

Nonimmigrant Non-Agricultural Less-Skilled Worker Visas

W: Visa for less-skilled, non-seasonal, non-agricultural workers in janitorial and hospitality industries. Visa-holders admitted for a three-year period, renewable for an additional three years; and must work for registered non- agricultural employers in registered positions.

X: Nonimmigrant investor visa lasting three years for entrepreneurs whose businesses attracted at least $100,000 in investment capital, created no fewer than three jobs during a three-year period prior to application, and generated $250,000 in annual revenue.

EB-6: Immigrant investor visa leading to lawful permanent residence for entrepreneurs who have significant ownership in a U.S. business and have had a significant role in starting-up the business. The business must have generated at least five jobs and $500,000 in venture or investment capital, or five jobs and $750,000 in annual revenues for the previous two years.

Other Nonimmigrant Visas

F-1 Student: The Bill alters an element of the current Student Visa by allowing students to have dual intent to stay either temporarily or permanently in the United States.

Nonimmigrant Retiree: A visa for foreign nationals over 55 years of age who don’t work, have health insurance, and have at least $500,000 to buy a residence in the United States.

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