Immigration
Reform
By James E. Root
Los Angeles, CA
Recently members of
Congress have introduced Immigration Reform legislation
in the 109th Congress which could greatly affect
foreign nationals. While there are numerous proposals,
there are two in particular which have been at the
forefront of discussion for those anticipating a
dramatic overhaul in the United States immigration
law.
The first proposal is the Secure America and Orderly
Immigration Act of 2005, introduced on May 12, 2005,
by Senators John McCain (R-AZ), Edward Kennedy (D-MA)
and others, S. 1033. The second proposal is the
Comprehensive Enforcement and Immigration Reform
Act of 2005, introduced on July 20, 2005, by Senators
John Cornyn (R-TX) and Jon Kyl (R-AZ), S. 1438.
The Secure America and Orderly Immigration Act,
S. 1033
Among other items, S. 1033 addresses several issues
or concerns important to American businesses and
families. The bill would create a new temporary
worker visa program (the H-5A visa) to allow foreign
workers to enter the US and fill available jobs
(including unskilled occupations). H-5A employers
would be able to immediately sponsor the H-5A visa
holders for permanent residence, or the H-5A workers
would be able to apply for permanent residence on
their own after four years in H-5A status.
Additionally, there would be a new temporary work
visa (the H-5B visa) for undocumented workers and
their families present in the United States on or
before May 12, 2005. The H-5B visa would be valid
for a six-year period, and the H-5B worker would
be able to apply for permanent residence status
at the completion of the six-year period provided
that the eligibility criteria is met, such as paying
Federal incomes taxes owed, paying an additional
$1,000 fine, demonstrating a basic understanding
of the English language, and other requirements.
The bill also proposes to promote family unity by
increasing the number of immigrant visas available
each year, and thereby reducing backlogs in the
family-based and employment-based preference categories.
Furthermore, the bill would extend the eligibility
for the immediate relative category (currently,
children, spouses, and parents of US citizens) to
include accompanying or following to join children
of children, spouses and parents of US Citizens.
Finally, the bill includes a proposal for a waiver
of the 3/10 year bar for aliens who, on or before
May 12, 2005, had pending family-sponsored or employment-based
petitions. In order to benefit from this waiver,
the aliens would have to pay a $2,000 fine for the
violations occurring prior to May 12, 2005.
The Comprehensive Enforcement and Immigration Reform
Act, S. 1438
In contrast, S. 1438 focuses on an enforcement approach
to immigration reform. The bill proposes a “Deferred
Mandatory Departure” program for eligible
undocumented immigrants present in the US on the
date of the bill’s introduction. Undocumented
immigrants would have to establish that they were
employed in the US since July 20, 2005, and have
been employed since that date. They would also have
to undergo various criminal and security background
checks, and pay an initial fine of $1,000 in addition
to application fees. Spouses and children of aliens
under Deferred Mandatory Departure would be subject
to the same conditions of the principal alien. However,
they would have to pay a $500 fee in addition to
application fees.
All aliens under the Deferred Mandatory Departure
would be required to depart prior to five years.
Failure to depart within the Mandatory Departure
period would make the alien ineligible for 10 years
for any immigration benefit or relief, other than
asylum-based protection claims or similar relief.
Moreover, S. 1438 proposes to establish a worker
visa program (the W visa). This nonimmigrant temporary
category would allow foreign workers to enter the
US and fill available jobs that require few or no
skills. The foreign worker would be required to
pay a $500 fine in addition to application fees,
and undergo certain security and medical checks.
The W visa would be valid for two years, after which
the foreign worker would have to return home for
one year. The alien would be able to participate
up to three times (a total of six years employment),
after which he would not be eligible to further
participate. If the alien fails to depart upon the
expiration of the W status, he or she would be subject
to a permanent bar to benefits or relief, other
than asylum or similar protection claims.
Under the W visa program, if an alien becomes unemployed
for 30 consecutive days, he or she would be ineligible
for hire until departing the US and reentering in
W status.
Finally, S. 1438 would provide no avenue to permanent
status. Therefore, on balance, it appears that the
Secure America and Orderly Immigration Act would
provide more benefits for immigrants than the Comprehensive
Enforcement and Immigration Reform Act. At this
point, there is no guarantee which reform package
will be approved by Congress, or whether an altered
reform package will somehow become law. Nevertheless,
there will be legislative debate and progress in
the upcoming months in the effort for major immigration
reform.
For more information and a “free” initial
legal consultation please contact Immigration Attorney
James E. Root at 1(888) ROOT-LAW or visit his website
at www.RootLaw.com. Mr. James E. Root heads an Exclusive
Immigration Law practice with two offices in Southern
California.
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