Proposed legislation would allow some undocumented immigrants to adjust their status
Beginning with this installment, the Wyatt, Tarrant & Combs, LLP immigration team, the largest immigration practice in the region, will offer readers of Business Lexington a three-part series outlining and discussing the proposed bipartisan legislation surrounding immigration reform that a group of eight senators, led by Senators John McCain and Charles Schumer, introduced into the Senate April 16: the “Border Security, Economic Opportunity, and Immigration Modernization Act.”
In Part 1, Jessica B. Oswald, a paralegal in the firm’s Louisville office, provides an analysis of the proposed steps to legalize the 11 million undocumented immigrants currently in the United States.
The immigration debate has taken a front seat in President Barack Obama’s second term, with the big question of how to handle the nearly 11 million undocumented immigrants currently in the country and fix an outdated immigration system.
A bipartisan group of eight senators has teamed up to provide a comprehensive immigration reform package that provides common-sense solutions to problems within the current system, while shoring-up the nation’s borders from another wave of illegal immigrants.
Undocumented individuals in the United States may have entered the United States illegally, without inspection at the border, or may have overstayed a valid visa. Regardless, they find themselves in an unlawful status, without work authorization or the ability to leave and re-enter the country. One component of the proposed legislation would give these individuals these freedoms, while establishing a record of who is here in the United States.
In the proposed legislation, individuals in an unlawful status may adjust to the legal status of Registered Provisional Immigrant, or RPI. There are eligibility requirements to obtain RPI status, and it does not immediately lead to permanent residency or citizenship.
The provisions for RPI status use existing immigrant-processing procedures to provide a thorough examination of the applicant, like requiring biometrics processing, or criminal background checks, and possible interview before approval of the application. It also requires that those obtaining RPI status go to the back of the line and wait their turn to obtain a green card, just like other immigrants currently in another legal status.
Eligibility for application to RPI status requires that the applicant be present in the United States at the time the application for RPI status is filed; that the person resided in the United States on or before Dec. 31, 2011; has maintained continuous physical presence since that date and until the application is granted; and has not been convicted of (i) an aggravated felony, (ii) a felony, (iii) three or more misdemeanors, (iv) an offense under foreign law, (v) unlawfully voted, or (vi) is inadmissible for criminal, national security, public health or other morality grounds.
Eligible applicants must complete and file their applications within the filing period (an initial period of one year from the date of publication of the final rule with extension of 18 months possible); pay all assessed federal income taxes; pay the first of two $500 penalty fee installments; and pay an application processing fee. Deferred Action for Childhood Arrivals (DACA) eligible applicants are not assessed the penalty fee. Dependent spouses and children may apply for RPI status as a derivative of the principal applicant, but they must be in the United States at the time.
While the application for RPI status is pending, the applicant may obtain an Advance Parole document, which will allow the applicant to re-enter the United States if urgent humanitarian conditions require travel outside the United States. Also, the applicant is considered in legal status and cannot be detained or removed unless the individual has been determined ineligible for RPI status.
Immigrants granted RPI status will be provided documentary evidence to establish their status. This will likely be a card similar to the current green card or employment authorization card that the immigrant will carry with them at all times. This document will allow the immigrant to work and travel — again, much like the current green card.
The initial period of RPI status granted will last six years and can be extended an additional six years, assuming the applicant continues to meet eligibility requirements, meets the employment requirements, and the status was not otherwise revoked.
An employment or education requirement demands that individuals seeking extension of RPI status, unless in a derivative status, maintain regular employment (allowing for lapses of no more than 60 days) or be enrolled in an education program; not become a public charge; and maintain an average income or resources to meet the established federal poverty level. They must also demonstrate that all taxes have been paid. RPI holders are not eligible for welfare or other federal benefits.
Deported individuals who were previously in the United States before Dec. 31, 2011, may apply to re-enter the United States in RPI status if they were deported for non-criminal reasons and are the spouse of a U.S. citizen or legal permanent resident (or the parent of a child who meets those requirements); or is a childhood arrival eligible under DACA. Individuals with removal orders or currently in removal proceedings will also be eligible to file for RPI status.
Immigrants in RPI status may adjust to a permanent resident status after maintaining RPI status and the requirements thereof for 10 years. They are also required to demonstrate knowledge of U.S. civics and English and pay another $1,000 penalty fee. RPI holders will not be eligible to adjust status unless all others currently waiting for a family or employment-based green card at the time the new rule is enacted have had their priority date become current.
After holding a green card for three years, the immigrant may naturalize to full legal rights as a United States citizen.
Up next in the three-part immigration series will be a discussion of changes to the current immigration system.