Future immigrants must earn their visas

The bipartisan senators in charge of drafting the comprehensive immigration reform measure recently introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S.744).  The 844-page bill contains several components, including border security and new rules for immigrant and nonimmigrant visas, among others.

For those who are waiting to be reunited with their families in the United States, how will their opportunity to immigrate be affected by the proposed senate bill?

The heart and soul of the immigration bill is the legalization provision—a path to citizenship for an estimated 11 million undocumented immigrants in the US.

There is a proposal to cut the four family-based preference categories to two.  The two categories will cover (1) US citizens’ petitions for unmarried adult children and married adult children who file before age 31 and (2) unmarried adult children of lawful permanent residents.

The Filipinos have the longest backlog when it comes to sibling petitions. There is a ridiculous waiting time of at least 24 years before a visa is issued to a sibling. The senate bill proposes to repeal this specific category for siblings. If the bill is passed into law  and 18 months after its enactment, US citizens will no longer be able to petition their brothers or sisters.

There is an option for those whose petitions have been pending for five years to apply for a “merit-based visa.”  A family member may be awarded points based on education, employment, and length of time the family-based petition is pending. Those with most points will earn a visa.

Provisional immigrant

A Registered Provisional Immigrant (RPI) status is proposed for those in unlawful status or those who have no legal documents to stay in the US. The bill provides that they may apply to adjust their status to that of Registered Provisional Immigrant Status. This RPI status is distinct from a lawful permanent resident status.

There are certain criteria that must be met before applying for this RPI status. First, the cutoff period is Dec. 31, 2011. This means that those applying must have been in the US prior to Dec. 31, 2011, and were able to maintain continuous legal presence. They should not have been convicted of aggravated felony, an offense in their home country, unlawfully voted or be inadmissible for criminal, national security, public health and other morality grounds.

Work authorization

Just like lawful permanent residents or green card holders, those in RPI status can work for any employer and travel outside the US. Their spouses and children may qualify as their derivative beneficiaries as long as they are in the US. The status of those granted RPI is the same as those lawfully present in the US except they are not entitled to premium assistance tax credit and the Affordable Care Act.

An individual who has a removal order may be permitted to apply for RPI status. Interestingly, even those who were sent back to the Philippines on orders of removal and were in the US prior to Dec. 31, 2011, may reenter the US in RPI status.  The bill limits those who may return to the US to those who were not deported for noncriminal reasons and who have spouses, parents or children who are US citizens or green card holders. Those young immigrants who may be eligible for the DREAM Act but were sent back to their home country may also reenter on RPI status.

Immigration reform

These provisions—the merit based system, the repeal of the two family categories and the RPI visa—are among the most controversial provisions that affect our community.

The introduction of this bill is just the first step taken by the bipartisan senators. It is only when Congress approves the bill and it is signed into law by President Obama that those eligible individuals can start applying. Prospective immigrants must be cautioned against premature and fraudulent offers of services to avail of the benefits of immigration reform. There is no law yet. The members of the House of Representatives are still working on their  own version of immigration reform.  More changes are expected as the Senators debate the bill in the coming weeks.

Atty. Lourdes Tancinco is a partner at Tancinco Law Offices based in San Francisco CA and may be reached through e-mail at [email protected] or call 887 7177 or 721 1963. You may also visit her website at www.tancinco.com