As anticipated, on January 28, 2013, a bipartisan group of eight (8) senators (Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet and Flake) laid out the legislative framework of comprehensive immigration reform. The framework consists of four basic pillars:
1. Create a tough but fair path to citizenship for unauthorizedimmigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrantshave left the country when required;
2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
4. Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.
The leaders in the Senate has set up a March 1, 2013 deadline to have a legislative language or potential proposed bills that would incorporate these four basic pillars. Once a bill is introduced, the proposed bill would go through the normal legislative process which includes hearings and a markup in the Senate Judiciary Committee and a debate and a vote on the senate floor. A day after the group of 8 senators laid the framework, President Obama also laid out his road map for immigration reform. The differences are that there is no trigger mechanism in place for the legalization of 11 million undocumented foreign nationals and he called for an increase in enforcement at the borders and at worksites. On the House of Congress, the House Judiciary Committee began hearings relating to immigration reform on February 5, 2013. At the moment, leaders from both parties are advocating their ideas for immigration reform. We are expecting a proposed comprehensive immigration bill toward the end of spring. Unlike the 2007 experience of comprehensive immigration reform, this time both parties have shown a commitment toward the reform. The question is how long the commitment will last.
On March 4, 2013, USCIS will implement the provisional waiver program. There are already a lot of confusion of the provisional waiver program. We want to remind our clients and prospective clients that there has not been a change in law but a change in procedure about the filing and adjudication of the waiver. A foreign national is subject to a 3 or 10 years if the foreign national has been unlawfully presence in the United States. The 3 or 10 years bar is only triggered when the foreign national departs the U.S. The bar will be 3 years if the unlawful presence is more than 180 days but less than a year, and a 10 years bar is for the unlawful presence of a year or more. Please keep in mind that the bar ONLY becomes effective when the foreign national depart the U.S. Thus, individuals who are NOT eligible for adjustment of status and require consular processing abroad will invoke the 3/10 years bar if they have accrued over 180 days unlawful presence. For the immigrant visa to be issued early, the foreign national will need to apply for a waiver for the 3/10 years bar. The provisional visa waiver program will now allow the foreign national to apply for the waiver in advance before departing the U.S. The foreign national will still be required to consular processing but only when the waiver is filed in the USA and has been approved by USCIS. Please keep in mind that the provisional waiver is a waiver for 3/10 years bar and IT DOES NOT WAIVE any other grounds of inadmissibility, such as misrepresentation, criminal convictions, or previous deportation order.
On January 25, 2013, USCIS has filed a writ of certiorari on Cuellar De Osorio v. Mayorkas to the U.S. Supreme Court. The U.S. Supreme Court will usually take about 6 weeks to make a decision of whether to grant the writ or to deny. Once the writ is granted it will take another 6 months to prepare for oral arguments and additional time for a decision to be issued. In the event that the writ is denied, the 9th Circuit decision will be final. We are monitoring this decision because it will greatly impact the capture and retention of priority dates for children under the Child Status Protection Act (CSPA).
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