New York Lawyer's Legal Updates

Immigration Reform: Shall You Wait for Changes

Author: US Immigration Lawyer Alena Shautsova

Finally, after long debates and preparations, the immigration reform Bill has been introduced for discussions and its draft has been made available for public review. Why do we say "a draft"? Because until it is actually adopted as the law the draft is only a proposal. It means that some of the proposed provisions are likely to undergo editions, there may be some new “adds-on” or, it might also be, that the Bill will not be passed in its entirety.

Nevertheless, as of now, the Bill proposes the following crucial changes to the current immigration system:

The main goal of the Bill is to legalize those who do not have U.S. relatives or who cannot be sponsored through employment due to coming to the U.S. illegally; overstaying their visas; or otherwise breaking Immigration laws. The Bill proposes to establish a category of “provisional Immigrant status.” To qualify for it, the person has to be:

  • physically present in the U.S. on the date of the submission of the documents; and
  • has to be physically present in the U.S. on December 31, 2011; and
  • maintain continuous physical presence in the U.S. since December 31, 2011 until the person is granted the status.

Ineligibility includes criminal convictions; being in lawful status and trigging national security concerns.

The applicant will have to pay a fine; after the applicant has been in provisional status for five years, he/she can apply for permanent resident status and later, apply for citizenship. The way the Bill is structured right now, the person will have to wait for 13 years before being able to become a U.S. citizen.

The good news is that those in removal proceedings and with final orders of removal will be able to apply for the provisional waiver status, if otherwise qualified.

Family Immigration and Immigration Reform

The new Immigration Reform Bill proposes to transfer the F2A preference category into the “immediate relative” qualification, meaning that those who have permanent resident spouses or those who are children of permanent residents will be able to receive immigrant visas immediately. Currently, the average wait time for this category is 2.5 years. However, at the same time the Bill eliminates possibility of sponsorship of siblings, and limits the immigration of sons and daughters of U.S. citizens once they reach 31 years old.

Employment Immigration and Immigration Reform

The Bill also proposes to make significant changes to the employment visas, adding new categories and increasing caps for unskilled and skilled workers. Those changes are of interests to those who are outside the U.S. or who are thinking of changing their immigration status while in the U.S.

Asylum and Immigration Reform

Finally, with regard to asylum claims, the bill makes a revolutionary proposal to eliminate the one year filing deadline. Please note, that under the current laws, the applicant for asylum must file his or her application within one year after entry into the U.S. or qualify for one of the limited exceptions. The bill would allow the applicants to apply for asylum again by reopening their cases if they were denied asylum based on the missed deadline. Coupled with the recent class action settlement which makes changes to the asylum clock rules, this new provision, if adopted, will make a significant change in the asylum procedure and will help many fearing persecution in their home countries to stay safe in the U.S.

Should you Wait for the Reform or Should you Act?

To sum up, it looks like the Bill will in fact help many to receive employment authorization and ability to travel. However, it is also obvious that a person who wishes to use the “provisional resident status” will have to wait in line for a very long time. It also seems that if he or she qualifies for an extreme I-601 hardship waiver, I-601A provisional waiver, or DACA relief, the person should act now, rather than put their lives on hold for another decade.

New York Immigration attorney Alena Shautsova is a principal at the Law Office of Alena Shautsova, a full service Immigration Law Firm in Brooklyn, New York. The author can be reached through www.shautsova.com or 917-885-2261 and encourages her readers to contact her with questions.

06 May 2013
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