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Analysis of the New Immigration Bill


This week the "gang of eight" senators introduced the Border Security, Economic Opportunity, and Immigration Modernization Act.  At 844 pages, the bill proposes more changes than can be addressed in a blog post.  I think the bill in its current form takes some good steps, but needlessly makes an already complicated system even more complicated. Here is a quick rundown of the good, the bad, and the ugly:

The Good:

One of the best changes that is proposed is finally allowing a waiver for false claims to U.S. Citizenship.  As I have written previously, this is one of the harshest provisions of immigration laws today.  A person who EVER claimed to be a U.S. Citizen is permanently inadmissible forever and ever with almost no exceptions allowed.  If BSEOIMA (Great Acronym!) becomes law, at least a person with a false claim will have a chance to ask the government to waive the false claim if he can show that keeping him out of the country would cause extreme hardship to himself or his family.

The Bill also does set out a framework for granting people who have lived here for a long time without status a sort of legal status, called  "registered provisional immigrant status." (RPI)  This is an improvement over the current system which just pretends that the undocumented population (most of whom have no current legal immigration option) will somehow resolve itself.  

Notably, the bill would also waive many of the grounds of inadmissibility for these folks.  Taking a page from last year's rules for DACA, the bill would waive many of the less serious criminal grounds that currently prevent many would-be immigrants from gaining legal status.  Even more notably, the bill takes the revolutionary stance that a conviction that has been expunged or vacated should NOT count against a person for immigration purposes.

The bill also has provisions which are intended to hasten processing of petitions which have already been filed for certain categories that have very long wait times.  This will help to reunite families who have been waiting for many years, and will also reduce the incentive for people to sneak in to avoid the long wait.  In particular, the bill would classify spouses and children of lawful permanent residents as "immediate relatives" to allow them the same fast track to immigrant visas that families of U.S. Citizens currently enjoy.

The Bad:

Other than the waiver for False Claims to Citizenship, the bill does little to address the the incredibly harsh grounds of inadmissibility for green card applicants.  This is perplexing, since the senators apparently see that, for example, misdemeanor convictions for retail theft or simple drug possession should not bar a person forever from living and working in the U.S.  Yet, they waive these grounds only for RPI applicants, not for others applying for immigrant visas from overseas or adjusting status based of family or work.  Since RPI is ONLY available to persons not in lawful status, this leads to preferential treatment of those who are unlawfully present. 

The Ugly:

Our current immigration system is very convoluted, with dozens of different visas and multiple routes to a green card through work, family, or for humanitarian reasons.  Myriad bars to immigration are matched by almost as many waivers and exceptions.  So many specialized rules exist that even within the field of immigration law most lawyers focus their practice on only a subset of types of immigration because it is simply too much information to keep on top of it all.  Comprehensive Immigration Reform should be a chance to streamline the system, make it into something a reasonably educated person could comprehend without dedicating a year of study.  

Instead, this bill just adds to the complexity.  Rather than allowing some portion of the existing undocumented population to use existing green card processes which are already well-documented and understood by the agencies and lawyers working the field, the bill introduces a brand new interim status with its own qualifications, deadlines, and procedures.  Rather than opening up the existing employment-based visa system to allow greater access by agricultural workers, the bill creates a new "blue card" sort-of maybe permanent work status that is something more than an employment authorization and less than a green card.

For as long as anything like our current immigration system has been in place, immigrants wishing to naturalize to U.S. Citizens have had to pass a test of Civics and English Language proficiency.  However, such test has never been required just to gain residency.  Under this law, the test would be required for a green card, but only for people who had RPI status beforehand.  All other immigrants will only need to take the test if they want to become citizens.  Only RPI green card holders who took the test to get their green cards will not need to take the test again when they apply for citizenship.  Why make it so complicated?  Why not just apply the same testing rules regardless of the basis of a person's application for green card?

The bill also includes a radical restructuring of the system for allotting work-based visas.  I can't say whether the system envisioned in the bill would be better or worse than the current laws, but it is at least as complicated and entirely new, meaning a learning curve for everyone involved.  The bill maintains yearly quotas based on type of employment and region and country of origin of the immigrant, so looks at least as difficult to administer as the current system.


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