Hot Topics in US Immigration :: Sonia Col :: US Immigration Attorney, New York (NYC)

Summary of the House bill (H.R.4437):
• “Unlawful presence” would be considered a crime and a felony. This means that undocumented immigrants may have to serve jail time and would not be able to attain legal status in the future or re-enter the U.S.
• All immigrants who are apprehended along an international border or at a port-of-entry would be detained until they are deported or given immigration relief.
• Anyone who assists an individual without documentation to reside in the United States knowingly or with reckless disregard as to the individual’s legal status would be liable for up to five years in prison and other criminal penalties.
• Expedited removal would be used within 100 miles of the border and within 14 days of a person’s entry into the country. This allows DHS enforcement personnel to remove a potential asylum-seeker without providing an opportunity to appear before an immigration judge.
• The Department of Homeland Security (DHS) would erect up to 700 miles of fencing along the Southwest border where immigrant deaths are the highest.
• Asylum seekers and refugees who are convicted of minor offenses would be not be able to attain permanent legal residence and citizenship.
• Document fraud would be considered an aggravated felony. This means that the asylum-seeker would be deported and barred from re-entry into the U.S.
• Citizens from countries who do not accept the return of aliens who commit crimes in this country would not be admitted to the U.S.
• DHS would be able to continue to detain individuals who have served their sentences if those individuals are determined to be dangerous aliens, contrary to Supreme Court rulings prohibiting indefinite detention.
• The diversity visa lottery program that allows 50,000 immigrants each year to permanently reside in the U.S. would be eliminated.

Summary of the Senate bill (S.2611):
• Path to Legal Status for Illegal Aliens Currently in the U.S.
o Those undocumented aliens who have been living in the U.S. for at least 5 years prior to April 5, 2006 will be eligible for 6 years of work authorization and a path to permanent legal status with these conditions:
 Payment of a $2,000 fine
 Satisfying English and civics requirements
 Passing background checks
 Paying owed taxes
 Will get legal permanent resident (LPR) status after current family backlogs are cleared
 Can apply for citizenship after 5 years as LPR
o Those undocumented aliens who have been living in the U.S. less than 5 but more than 2 years will get"Deferred Mandatory Departure (DMD) status and will be eligible for work authorization and a path to permanent status with the following conditions:
 Must leave the country within 3 years and return
 Can apply for readmission before departing the U.S.
 Departure requirement is waived for spouses and children, or if there is substantial hardship on person or immediate family.

• Family Unity and Reduction of Family and Employment Visa Backlogs
o Those in current family backlogs will get LPR status before any other undocumented alien
o The new family preference cap would be increased to 480,000 to eliminate backlogs
o The new employment-based cap would be increased to 450,000 for a 10-year period
o 30% of employment-based cap would be allotted for "essential" workers

• Reform of High-Skilled Immigration Visa Rules
o Student visa rules would be changed to permit dual intent, expand the period of Optional Practical Training (OPT), and make a path to LPR status for certain advanced degree students
o The H-1B cap would be expanded to 115,000 with exemption for science, technology, engineering and math (STEM) advanced degree holders
o There would be exemptions for the annual employment-based cap for STEM advanced degree holders, aliens of extraordinary ability, and outstanding professors and researchers

• A new Temporary Worker Program and Path to LPR Status
o A new temporary worker program would be created for 200,000 new temporary "essential" workers per year
o A 3 year visa with renewal for 3 years and with the flexibility to work for an employer chosen by the immigrant would be created
o Current undocumented aliens who entered the U.S. after January 2004 would be eligible for LPR status, but must leave the country to apply for status with the 3 to 10 year bars to re-entry waived
o Employers would have to seek U.S. workers first and would be subject to labor protections and market wage requirements
o Application for legal permanent status within the new employment-based cap would be allowed; self-petition would be allowed if the alien has worked for 4 years, otherwise the alien’s employer can petition for the alien

• Reforms to Agricultural Worker Program
o Farmworkers who show that they have performed at least 150 days of agricultural work in the U.S. during the 24 month period ending December 31, 2005 would get temporary resident status; spouse and minor kids would also be eligible to get status
o To earn legal permanent resident status, farmworkers would have to perform agricultural work for at least 100 work days per year for 5 years, OR perform 150 days per year for 3 years.
o The earned legalization program would have a cap of 1.5 million.
o The H-2A temporary foreign worker program would allow dairy industry employers to hire workers even when they are year-round workers.

• Path to Legal Status for Undocumented High School Students (DREAM Act)
o Students who enter the U.S. before the age of 16, who are present for 5 years preceding the date of this bill’s enactment, and who have graduated from high school (or GED), would be able to apply for 6-year conditional status
o Within 6 years of the date of this bill’s enactment, if the alien has graduated from college, completed two years in a degree program, or served in the Armed Forces, the alien’s conditional status would become legal permanent status


Listed below are some of the most controversial recent issues in U.S. immigration law, as summarized by Ms. Col.