Starting May 19, 2013, immigrants abroad who have received their immigrant visas can pay the USCIS Immigrant Fee of $165.00US online through USCIS ELIS, the USCIS Electronic Immigration System. USCIS ELIS is the much touted “transformation” of paper-bound immigration processing to electronic on-line processing which USCIS has promised will modernize its immigration processing.
The ELIS system permits an applicants to make a payment, file an application, and submit electronically scanned evidence directly to USCIS. It also permits an applicant to gain real-time information about his or her case and receive USCIS notices electronically. Despite substantial investment by USCIS in ELIS, it covers only a single form: An application used by certain foreign nationals who seek to change or extend their visitor, or student stay. Now ELIS is also to be used by immigrants abroad to pay a Immigrant Fee to USCIS before departing for the U.S. instead of making payment on pay.gov. Starting February 1, 2013, USCIS began collecting a $165.00US fee for each immigrant who receives an immigrant visa package from a U.S. consulate or embassy abroad to receive a green card in the U.S. The fee reimburses USCIS for the cost of immigration processing after an immigrant surrenders his or her visa package to USCIS.
USCIS has not stated when ELIS will be expanded to process any of the other dozens of paper forms which USCIS requires of immigrants and non-immigrants alike.
For many F-1 academic students who have graduated, received post completion Optional Practical Training (“OPT”), had an H-1B petition filed in their behalf with a start date of October 1, and “won” the H-1B lottery, such persons are entitled to continued, authorized F-1 stay and continued employment authorization up until September 30 of the year. This is known as a “cap gap” benefit. The question arises whether a cap gap H-1B beneficiary can travel outside the U.S. without adverse impact if the H-1B petition is pending or already approved.
While there is no guidance directly on point, in a policy Memorandum issued on April, 2010, Immigration and Customs Enforcement (“ICE”) advises against travel for an F-1 student whose H-1B change of status petition has not yet been decided. It bases its reasoning on USCIS policy that considers the change of status portion of an H-1B petition as abandoned if the H-1B beneficiary departs the U.S. before USCIS decides the case. The Memorandum is silent regarding cap-gap travel if the H-1B petition is already approved. To be safe, H-1B cap gap beneficiaries should remain in the U.S. during the cap-gap interval and those considering travel abroad should consider making an H-1B visa application in September. H-1B visa status holders can enter 10 days in advance of their start date but can only begin work on October 1.
The U.S. Department of Commerce has reported that international travelers spent more than $14.4 billion on travel and tourism in the U.S. in just one month, March, 2013, which the Department reports is an increase of 3% over the prior year, and is part of the $43 billion spent during the first quarter of 2013. According to Department officials, international travel and tourism represents is the U.S.’s largest service export.
Travel and tourism supports almost 8 million U.S. jobs and recent increases in tourism account for strong job growth in the leisure and hospitality sector. The Administration has a strategy in place to increase travel and tourism to attract more than 100 million international tourists who may spent up to $250 billion per year and expand economic growth throughout the country. The Administration’s goal is to maintain and improve national security through better law enforcement cooperation in the Visa Waiver program, together with enhancements to visa and visitor processing, and processing at U.S. ports of entry while making the U.S. a destination of choice worldwide. The sheer size and significance of the travel and tourism sector of the U.S. economy and long term U.S. concerns regarding terrorism and national security underscore the difficulty in balancing these interests. But balancing them is what the Administration must do.
Starting April 30, 2013, the United States Customs and Border Protection agency has begun providing foreign national travelers to the United States with a passport stamp and making available an electronic record of admission instead of providing each foreign national with a paper I-94 as evidence of lawful admission. The paperless I-94 process is for foreign national travelers arriving by air and sea. While there is no legal requirement for foreign national to print out a paper form I-94 record, there are several good reasons to do so.
First, a traveler can check admission class and validity period to see that they match the CBP passport stamp and annotation. Second, having an I-94 paper printout can assist a foreign national in obtaining a state driver’s license as well as in obtaining a U.S. Social Security number. Finally, an employment authorized foreign national can furnish an I-94 printout to an employer in completing Form I-9 Employment Eligibility Verification. Foreign nationals can go online to www.cbp.gov/i94 and print out their I-94 record.
Effective April 30, 2013, foreign national nonimmigrants arriving by air or sea will not have to complete a paper Form I-94 Arrival/Departure Document upon arrival in the U.S. Instead, U.S. Customs and Border Protection (“CBP”) will physically stamp each nonimmigrant’s admission and electronically record it from each applicant’s electronic travel record. According to CBP, nonimmigrant foreign nationals departing the U.S. will not need to do anything differently. If a foreign national nonimmigrant did not receive a paper Form I-94, CBP will automatically record the foreign national’s departure electronically from the carrier’s passenger manifest.
Electronic I-94 processing is expected to save CBP over $15 million annually. For foreign national nonimmigrants who need a paper confirmation of admission, CBP will have a website page where a foreign national nonimmigrant can print out their admission record information when needed for other pruposes.
Land border ports of entry are not presently included in this rollout and foreign national nonimmigrant will continue to receive a paper Form I-94.
CBP plans to rollout the electronic admission process over a 4 week period at the rate of 5 pilot ports of entry per week.
1. This bulletin summarizes the availability of immigrant numbers during April. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Family-Sponsored
All Charge-ability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
F1
08MAR06
08MAR06
08MAR06
01AUG93
15FEB99
F2A
15DEC10
15DEC10
15DEC10
01DEC10
15DEC10
F2B
08APR05
08APR05
08APR05
22FEB93
15JUL02
F3
22JUL02
22JUL02
22JUL02
22MAR93
01OCT92
F4
01MAY01
01MAY01
01MAY01
01SEP96
15AUG89
*NOTE: For April, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01DEC10. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01DEC10 and earlier than 15DEC10. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Employment- Based
All Chargeability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
01APR08
01SEP04
C
C
3rd
01JUL07
22APR07
08DEC02
01JUL07
08SEP06
Other Workers
01JUL07
01AUG03
08DEC02
01JUL07
08SEP06
4th
C
C
C
C
C
Certain Religious Workers
C
C
C
C
C
5th
Targeted
Employment Areas/
Regional Centers and Pilot Programs
C
C
C
C
C
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2013 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For April, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas Except Those Listed Separately
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013. DV visas may not be issued to DV-2013 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013. DV visa availability through the very end of FY-2013 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANKCUT-OFFS WHICH WILL APPLY IN MAY
For May, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas Except Those Listed Separately
The Department of State advises in the March, 2013 Visa Bulletin (See http://www.rabinowitzrabinowitz.com/2013/02/visa-bulletin-for-march-2013/) that due to visa demand changes, entrepreneur investors from China are not likely to face a visa number wait time for an immigrant visa. As background, the EB-5 program permits certain foreign nationals who have made a $500,000 or $1,000,000 investment in the U.S., and who meet other requirements, to gain permanent resident status arising out of their investment. The program provides 10,000 entrepreneur investor visas per fiscal year. For the first time in December, 2012, the DOS advised that high visa demand by investors from China had increased to level such that there appeared to be more applicants than visa numbers that could be issued to citizens of China. As a result, the DOS advised that a cut-off date would be imposed, meaning a date after which applicants would have to wait for a visa number to become available. This, according to DOS, would likely occur during the last 6 months of the fiscal year starting in March, 2013. The DOS recently advised that EB-5 visa demand from China is now averaging out to a manageable level and a cutoff would not likely be needed. This means that EB-5 visa numbers should remain available for Chinese applicants for the rest of the fiscal year ending September 30, 2013.
1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by February 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Family-Sponsored
All Charge-ability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
F1
15FEB06
15FEB06
15FEB06
22JUL93
15OCT98
F2A
22NOV10
22NOV10
22NOV10
15NOV10
22NOV10
F2B
01MAR05
01MAR05
01MAR05
15JAN93
08JUN02
F3
15JUL02
15JUL02
15JUL02
15MAR93
15SEP92
F4
22APR01
22APR01
22APR01
15AUG96
15JUL89
*NOTE: For March, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15NOV10. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15NOV10 and earlier than 22NOV10. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Employment- Based
All Chargeability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
15FEB08
01SEP04
C
C
3rd
01MAY07
22JAN07
22NOV02
01MAY07
01SEP06
Other Workers
01MAY07
01JUL03
22NOV02
01MAY07
01SEP06
4th
C
C
C
C
C
Certain Religious Workers
C
C
C
C
C
5th
Targeted
Employment Areas/
Regional Centers and Pilot Programs
C
C
C
C
C
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2013 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For March, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas Except Those Listed Separately
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2013 program ends as of September 30, 2013. DV visas may not be issued to DV-2013 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013. DV visa availability through the very end of FY-2013 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANKCUT-OFFS WHICH WILL APPLY IN APRIL
For April, immigrant numbers in the DV category are available to qualified DV-2013 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas Except Those Listed Separately
India: No movement. Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from U.S. Citizenship and Immigration Services (USCIS) Offices for adjustment of status cases remains extremely high. Should the current rate of demand continue, it is likely that at some point the cut-off date will need to be retrogressed in an effort to hold demand within the FY-2013 annual limit.
Employment Third:
Worldwide: Four to six weeks
China: Two to three months
India: Up to two weeks
Mexico: Four to six weeks
Philippines: Up to one week
Employment Fourth: Current
Employment Fifth: Current
Item D of the December 2012 Visa Bulletin alerted readers that a China cut-off date might be imposed at some point during the second half of the fiscal year. Currently there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY-2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.
The above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time. Those categories with a “Current” projection will remain so for the foreseeable future.
Texas of Bipartisan Framework for Comprehensive Immigration Reform
Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake
Introduction
We recognize that our immigration system is broken. And while border security has improved
significantly over the last two Administrations, we still don’t have a functioning immigration
system. This has created a situation where up to 11 million undocumented immigrants are living
in the shadows. Our legislation acknowledges these realities by finally committing the resources
needed to secure the border, modernize and streamline our current legal immigration system,
while creating a tough but fair legalization program for individuals who are currently here. We
will ensure that this is a successful permanent reform to our immigration system that will not
need to be revisited.
Four Basic Legislative Pillars:
* Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
* Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
* Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
* Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.
I. Creating a Path to Citizenship for Unauthorized Immigrants Already Here that is Contingent Upon Securing the Border and Combating Visa Overstays
* Our legislation will provide a tough, fair, and practical roadmap to address the status of
unauthorized immigrants in the United States that is contingent upon our success in securing
our borders and addressing visa overstays.
* To fulfill the basic governmental function of securing our borders, we will continue the
increased efforts of the Border Patrol by providing them with the latest technology,
infrastructure, and personnel needed to prevent, detect, and apprehend every unauthorized
entrant.
* Additionally, our legislation will increase the number of unmanned aerial vehicles and
surveillance equipment, improve radio interoperability and increase the number of agents at
and between ports of entry. The purpose is to substantially lower the number of successful
illegal border crossings while continuing to facilitate commerce.
* We will strengthen prohibitions against racial profiling and inappropriate use of force,
enhance the training of border patrol agents, increase oversight, and create a mechanism to
ensure a meaningful opportunity for border communities to share input, including critiques.
* Our legislation will require the completion of an entry-exit system that tracks whether all
persons entering the United States on temporary visas via airports and seaports have left the
country as required by law.
* We recognize that Americans living along the Southwest border are key to recognizing and
understanding when the border is truly secure. Our legislation will create a commission
comprised of governors, attorneys general, and community leaders living along the
Southwest border to monitor the progress of securing our border and to make a
recommendation regarding when the bill’s security measures outlined in the legislation are
completed.
* While these security measures are being put into place, we will simultaneously require those
who came or remained in the United States without our permission to register with the
government. This will include passing a background check and settling their debt to society
by paying a fine and back taxes, in order to earn probationary legal status, which will allow
them to live and work legally in the United States. Individuals with a serious criminal
background or others who pose a threat to our national security will be ineligible for legal
status and subject to deportation. Illegal immigrants who have committed serious crimes
face immediate deportation.
* We will demonstrate our commitment to securing our borders and combating visa overstays
by requiring our proposed enforcement measures be complete before any immigrant on
probationary status can earn a green card
* Current restrictions preventing non-immigrants from accessing federal public benefits will
also apply to lawful probationary immigrants.
* Once the enforcement measures have been completed, individuals with probationary legal
status will be required to go to the back of the line of prospective immigrants, pass an
additional background check, pay taxes, learn English and civics, demonstrate a history of
work in the United States, and current employment, among other requirements, in order to
earn the opportunity to apply for lawful permanent residency. Those individuals who
successfully complete these requirements can eventually earn a green card.
* Individuals who are present without lawful status – not including people within the two
categories identified below – will only receive a green card after every individual who is
already waiting in line for a green card, at the time this legislation is enacted, has received
their green card. Our purpose is to ensure that no one who has violated America’s
immigration laws will receive preferential treatment as they relate to those individuals who
have complied with the law.
* Our legislation also recognizes that the circumstances and the conduct of people without
lawful status are not the same, and cannot be addressed identically.
* For instance, individuals who entered the United States as minor children did not knowingly choose to violate any immigration laws. Consequently, under our proposal these individuals will not face the same requirements as other individuals in order to earn a path to citizenship.
* Similarly, individuals who have been working without legal status in the United States agricultural industry have been performing very important and difficult work to maintain America’s food supply while earning subsistence wages. Due to the utmost importance in our nation maintaining the safety of its food supply, agricultural workers who commit to the long term stability of our nation’s agricultural industries will be treated differently than the rest of the
undocumented population because of the role they play in ensuring that Americans have safe and secure agricultural products to sell and consume. These individuals will earn a path to citizenship through a different process under our new agricultural worker program.
II. Improving our Legal Immigration System and Attracting the World’s Best and Brightest
* The development of a rational legal immigration system is essential to ensuring America’s
future economic prosperity. Our failure to act is perpetuating a broken system which sadly
discourages the world’s best and brightest citizens from coming to the United States and
remaining in our country to contribute to our economy. This failure makes a legal path to
entry in the United States insurmountably difficult for well-meaning immigrants. This
unarguably discourages innovation and economic growth. It has also created substantial visa
backlogs which force families to live apart, which incentivizes illegal immigration.
* Our new immigration system must be more focused on recognizing the important
characteristics which will help build the American economy and strengthen American
families. Additionally, we must reduce backlogs in the family and employment visa
categories so that future immigrants view our future legal immigration system as the
exclusive means for entry into the United States.
* The United States must do a better job of attracting and keeping the world’s best and
brightest. As such, our immigration proposal will award a green card to immigrants who
have received a PhD or Master’s degree in science, technology, engineering, or math from an
American university. It makes no sense to educate the world’s future innovators and
entrepreneurs only to ultimately force them to leave our country at the moment they are most
able to contribute to our economy. 4
III. Strong Employment Verification
* We recognize that undocumented immigrants come to the United States almost exclusively
for jobs. As such, dramatically reducing future illegal immigration can only be achieved by
developing a tough, fair, effective and mandatory employment verification system. An
employment verification system must hold employers accountable for knowingly hiring
undocumented workers and make it more difficult for unauthorized immigrants to falsify
documents to obtain employment. Employers who knowingly hire unauthorized workers
must face stiff fines and criminal penalties for egregious offenses.
* We believe the federal government must provide U.S. employers with a fast and reliable
method to confirm whether new hires are legally authorized to work in the United States.
This is essential to ensure the effective enforcement of immigration laws.
* Our proposal will create an effective employment verification system which prevents identity
theft and ends the hiring of future unauthorized workers. We believe requiring prospective
workers to demonstrate both legal status and identity, through non-forgeable electronic
means prior to obtaining employment, is essential to an employee verification system; and,
* The employee verification system in our proposal will be crafted with procedural safeguards
to protect American workers, prevent identity theft, and provide due process protections.
IV. Admitting New Workers and Protecting Workers’ Rights
* The overwhelming majority of the 327,000 illegal entrants apprehended by CBP in FY2011
were seeking employment in the United States. We recognize that to prevent future waves of
illegal immigration a humane and effective system needs to be created for these immigrant
workers to enter the country and find employment without seeking the aid of human
traffickers or drug cartels.
* Our proposal will provide businesses with the ability to hire lower-skilled workers in a timely
manner when Americans are unavailable or unwilling to fill those jobs.
* Our legislation would:
* Allow employers to hire immigrants if it can be demonstrated that they were unsuccessful in recruiting an American to fill an open position and the hiring of an immigrant will not displace American workers;
* Create a workable program to meet to meet the needs of America’s agricultural industry,
including dairy to find agricultural workers when American workers are not available to fill open positions;
* Allow more lower-skilled immigrants to come here when our economy is creating jobs, and fewer when our economy is not creating jobs;5
* Protect workers by ensuring strong labor protections; and,
* Permit workers who have succeeded in the workplace and contributed to their communities over many years to earn green cards
USCIS has released additional information regarding its new provisional waiver program. The program permits certain otherwise visa ineligible immigrants to apply for a waiver while still in the U.S. and then use the approved provisional waiver when he or she appears for an immigrant visa interview abroad. The program is to begin accepting filings on March 4, 2013.
As background, in early January, 2013, the Department of Homeland Security published a final rule providing that the spouse, parent, or child of a U.S. citizen who is in the U.S. and who is applying for an immigrant visa abroad and who has accrued unlawful presence in the U.S. (that is, has overstayed the time period authorized at the time of last admission, or who had entered without inspection) can apply for a waiver of unlawful presence while in the U.S. and before departing to conclude immigrant visa issuance at a U.S. consular post abroad. Under current processing such an applicant would have to apply for a waiver abroad after having been found ineligible for an immigrant visa at the immigrant visa interview, and then wait for the waiver to be decided while the applicant is abroad, separated from U.S. family members. The provisional waiver program is designed to minimize family separation time by having the waiver application decided before the immigrant visa applicant departs the U.S. for his or her interview.
USCIS clarified that the provisional waiver is available only to applicants who have a single basis of visa ineligibility: unlawful presence. An applicant with more than 1 basis of visa ineligibility must still apply for a waiver abroad after the immigrant visa interview. The waiver requirements remain unchanged: An applicant must still establish that refusal of his or her admission to the U.S. would result in extreme hardship to a U.S. citizen spouse or parent. Only the location and timing of filing are affected by the new provisional waiver program. Provisional waiver processing is also only available to an immigrant who has an immigrant visa case pending at the Department of State and who has already paid the DOS application fee. An immigrant with an existing order of removal, or who is not the beneficiary of an approved immigrant visa petition as an immediate relative, or who is in removal proceedings, or who is an adjustment of status applicant is also not eligible to use the program.
All provisional waiver applicants will be scheduled for a biometrics appointment in the U.S., and in some cases, could be interviewed by USCIS on his or her provisional waiver application. The provisional waiver does not provide employment authorization, nor stop unlawful presence from continuing to be counted, nor protect an applicant from the institution of removal proceedings, although USCIS advises that it does not plan to refer either an approved or a denied provisional waiver case to ICE unless the basis for the referral is a DHS enforcement priority. A provisional waiver grants one key legal benefit: the immigrant can quickly process at a U.S. consular post abroad and not be delayed by the requirement to apply for and obtain a waiver while abroad and separated from U.S. close family members.
Notwithstanding some of its limitations, provisional waiver processing is welcome news for the spouses, children and parents of U.S. citizens.
