Copland and Brenner

Table of Contents

1. Immigration Reform Act Introduced In Senate
2. DHS Proposes Fee Increase

1. Immigration Reform Act Introduced In Senate

   On January 21, 2004, Senators Chuck Hagel (R-NE) and Tom Daschle (D-SD) introduced a bill titled “Immigration Reform Act of 2004: Strengthening America’s National Security, Economy and Families.” The bill provides for family reunification, a willing worker program and earned adjustment for certain aliens. While the bill did not garner the media attention of the President’s statement of support for a “temporary worker” program in early January, the Senate bill is a much more significant development as it represents the actual first step in the legislative process. Significant provisions of the bill are discussed below.

   TITLE I:
   FAMILY REUNIFICATION

   The major provisions of Title I include the following:

   - would reclassify spouses and the minor children of lawful permanent residents as “immediate relatives” under the Immigration and Nationality Act. The effect of this change would be to eliminate current annual quotas under the family second preference category.
   - “[t]he same treatment shall apply to parents [of U.S. citizens] being entitled to the same status.” This poorly worded provision appears to be an effort to eliminate a longstanding problem regarding lack of derivative status; currently, when an adult U.S. citizen son or daughter sponsors his/her parent for lawful permanent resident status, that parent’s spouse and any minor children are ineligible for derivative status. In such cases, the parent’s spouse and any minor children must be petitioned for individually, a prospect that generally results in many years of separation because of oversubscribed quotas in the family second preference and fourth preference categories
   - the annual quota for unmarried sons and daughters of U.S. citizens would be raised from 23,400 to 38,000
   - the annual quota for unmarried sons and daughters of lawful permanent residents would be changed from 114,200 to 60,000 (the decrease appears to be offset by favorable changes in other allocations)
   - the annual quota for married sons and daughters of U.S. citizens would be raised from 23,400 to 38,000
   - the annual quota for brothers and sisters of U.S. citizens who are at least 21 years of age would be raised from 65,000 to 90,000
   - the “unlawful presence” provisions of Immigration and Nationality Act Section 212(a)(9)(B), which create three- and ten-year bars to returning to the U.S.A. would be waived for spouses and children of U.S. citizens and lawful permanent residents, as well as the parents of U.S. citizens at least 21 years of age, if the applicable visa qualifying petition was filed on or before January 21, 2004
   - likewise, the bar to inadmissibility for any alien who has been unlawfully present for an aggregate period of more than one year under INA 212(a)(9)(C)(I) would be waived for spouses and children of U.S. citizens and lawful permanent residents, as well as the parents of U.S. citizens at least 21 years of age, if the applicable visa qualifying petition was filed on or before January 21, 2004

   TITLE II:
   WILLING WORKER PROGRAM

   Under Title II, U.S. employment provisions would change as follows:

   - the language defining H-2B workers would be amended, replacing the term “temporary service or labor” with “short-term service or labor, lasting not more than 9 months”
   - a statutory recruitment process would apply to H-2B workers and H-2C trainees, to include Department of Labor recruitment efforts, posting at the place of employment, and advertising “in a publication with the highest circulation in the labor market that is likely to be patronized by a potential worker;” wage, working condition and minimum requirement attestations must be filed with the DOL by participating U.S. employers
   - the DOL would have 21 days to decide upon an application; a subsequent petition filed with USCIS would have to be decided within 60 days of filing
   - explicitly states that H-2B and H-2C aliens “shall not be denied any right or any remedy under Federal, State, or local labor or employment law that is applicable to a U.S. worker,” and offers a number of additional, explicit protections from exploitation
   - a portability provision for H-2C workers such that aliens may change employers, but “only after the alien has been employed by the petitioning employer for at least 3 months” in H-2C status
   - bars H-2B employees from changing employers “after the alien has been employed by the petitioning employer”
   - the above provisions regarding change of employer may be waived in certain cases involving employer violation, or a change in personal circumstances of the alien “rendering the alien unable to perform the job”
   - the spouse and any children of “willing workers” will be eligible for derivative status to accompany or follow to join the alien
   - petitions may be filed by “an associated or affiliated group of employers…or by a union or union consortium,” but not by “a recruiting entity or job shop”
   - H-2B temporary workers could be admitted for no more than nine months in any one-year period, with no more than 36 months in a four-year period
   - H-2C trainees could be admitted for an initial period of no more than two years, with one additional period of not more than two years
   - annual quotas would apply to both H-2B and H-2C workers after final regulations are published
   -- H-2B and H-2C aliens would be eligible for a change of status to any nonimmigrant or immigrant classification for which he or she establishes eligibility
   - H-2B and H-2C aliens would be eligible for adjustment of status pursuant to INA Section 245 or issuance of an immigrant visa, “without regard to any numerical limitation…upon the filing of a petition for such a visa” by the employer, or “the alien, provided the alien has been employed under such nonimmigrant status for at least three years” and his/her spouse and any minor children will have derivative eligibility
   - the “dual intent” provision of INA Section 214(h) would be expanded to include H-2B and H-2C aliens, such that seeking U.S. permanent residence would not constitute evidence of an intention to abandon foreign residence; this significant benefit has long been limited to H-1B and L status holders (and, more recently, V status holders)
   - violations of several immigration law provisions concerning inadmissibility – including illegal entrants, those who committed fraud or misrepresentation, were “student visa abusers,” failed to attend a removal proceeding, or were previously removed or unlawfully present “shall not apply if the violation was committed before” January 21, 2004

   TITLE III:
   ACCESS TO EARNED ADJUSTMENT

   Under Title III, an “amnesty”-style eligibility for permanent residence would exist for aliens who:

   - have been physically present in the U.S.A. for at least five years prior to January 21, 2004
   - were employed in the U.S.A. for an aggregate of three of those five years, and at least one year following the date of enactment; documentation of such employment must be provided
   - have paid all income taxes due as a result of such employment, or have entered into an agreement with the IRS for any tax liabilities, no later than the date of adjustment
   - were not legally present in the U.S.A. on January 21, 2004
   - have not departed the U.S.A. except for “brief, casual, and innocent” departures
   - pay any applicable adjustment fees, plus a $1,000 fine
   - if required, have registered for Selective Service

   The spouse and any minor children of an eligible alien would also be eligible, and violations of several immigration law provisions concerning inadmissibility – including illegal entry, fraud or misrepresentation, being the subject of a final order concerning document fraud, student visa abusers, failure to attend a removal proceeding, or previously removed or unlawfully present will not apply to aliens seeking adjustment under this section.

   Further, applicants “shall” be granted employment and travel permission while their applications are pending, and “shall not be detained, determined inadmissible or deportable, or removed” pending adjudication of the application, unless he or she commits an act which renders him/her ineligible for adjustment. An applicant who is in removal proceedings and establishes prima facie eligibility for adjustment under this section “shall be entitled to termination of the proceedings pending the outcome of the alien’s application, unless the removal proceedings are based on criminal or national security grounds.”

   The complete bill may be viewed on a link at our web site.

2. DHS Proposes Fee Increase

   By a proposed rule published in the Federal Register on February 3, 2004, the Department of Homeland Security (“DHS”) seeks to increase the filing fees for many commonly used petitions and applications adjudicated by its immigration benefits agency, U.S. Citizenship and Immigration Services (“USCIS”).

   Fee increases are deemed necessary by DHS for several reasons, including:

   - higher costs incurred since July 2002, when the agency added security checks to the processing of all immigration benefit applications; these efforts add $21 per application.
   - program enhancements (such as improving refugee processing and naturalization services for military personnel) and new activities, including a refugee corps and a “sourcing study for public-private job competitions of the functions performed by Immigration Information Officers and Contact Representatives;” these efforts add $7 per application.
   - recovery of “the annual costs of litigation settlements”
   - funding for administrative costs of the agency, which adds $23 per application.
   - cost of living increases, which add $4 per application.
   - since costs of electronically capturing and retaining biometrics such as fingerprinting, photographs and signatures have increased since 1999, the biometrics fee for fingerprinting would increase by $20, to $70.

   If the rule is implemented as proposed, the filing fees for 37 of the most commonly used petitions and applications, including Forms I-90, I-102, I-129, I-129F, I-130, I-131, I-140, I-360, I-485, I-539, I-601, I-751, I-765, N-400 and N-600. Among the 37 forms affected by the proposal, the filing fee for 30 of them will be raised by $55. For subsequent years (commencing in fiscal year 2006), the rule proposes to “adjust the current immigration benefit application fees on October 1^st each year based upon the inflation level enacted by Congress” or “the anticipated inflation rates used in the President’s annual budget request.” (emphasis added)

   The American Immigration Lawyers Association (“AILA”) was provided an advance copy of the rule and responded on the day of publication with a press release titled “Not Up to the Challenge.” In it, AILA cites agency failures including processing backlogs, wasted resources and “harassing honest petitioners with requests for paperwork unrelated to their immigration eligibility,” and charges that “at a time when the quality of service is at an historic low, increases of this magnitude are difficult to justify.” The organization also objects to factoring the expense of lawsuits against the agency into filing fees, thereby “forc[ing] applicants to pay for these failures.”

   The 6-page proposed rule may be accesssed on the Federal Register web site at http://www.access.gpo.gov/su_docs/fedreg/frcont04.html, and clicking on the link to Tuesday, February 3, 2004. Written comments to the proposed rule must be submitted no later than March 4, 2004.