With Congress returning from recess, an immigration reform bill was expected to be unveiled this week. Much of the news coming from the Capitol has reflected optimism from insiders among the bipartisan groups (one in the Senate and one in the House) negotiating immigration reform legislation. Despite the promises of impending immigration reform bills from the Senate’s Gang of 8 and the House’s Secretive 8, large questions loom – namely, the who, when, and what.
Who will be first to reveal a reform bill? Answer: flip a coin. Depending on which article you read, either group could move first.
When will a reform bill be released? Some reports indicate this week, while others have a slightly more relaxed timeline of this week or next. I think the most accurate answer is, we’ll only know when it’s finally released. Of course, these things take time, but there is a general understanding that a reform bill needs to be introduced sooner rather than later, especially since President Obama has expressed that his proposed bill is waiting in the wings should the legislators’ negotiations stall. While the legislators may have reached agreements in principle, it is another thing to put pen to paper and draft language of a bill that could affect an estimated 11 million undocumented immigrants, as well as the nation at large. When discussing the timing issue, at least one congressional aide indicated that it will not matter if the Senate or House introduces legislation first, but suggested that it would be “important…that both bills are out at the same time so the debate can take place concurrently….”
What will the reform bill contain? Despite the speculation surrounding the who and the when, information was released regarding the what, assuming reports from insiders are accurate. Last week, House aides, speaking on the condition of anonymity because no public announcement has been made, provided some details on the House immigration reform bill.
The House Bill – 3 Paths
Unlike the Senate’s reported immigration legislation that will create one path to citizenship, the House immigration bill will offer three paths to lawful status. An accelerated path will be available to immigrants brought here as children, known as DREAMers, and for agricultural workers, who provide a recognized essential workforce for the economy. The second group will consist of those with family or employment ties who do not have lawful status, but would otherwise be eligible to apply for permanent resident status based on those ties. Under the current law, such individuals would have to apply for permanent resident status by returning to their home country for a visa interview. However, doing so would trigger 3- or 10-year penalties to returning to the U.S. With the House immigration reform bill, there would be no requirement to return to the home country. The third category grants a probationary (also termed “provisional”) lawful status to undocumented immigrants who pass background checks, pay fines and back taxes, and learn English. Probationary status would permit work and travel in the U.S. Recipients could eventually apply for permanent resident (green card) status after 10 years, and then after 5 years of residency, citizenship.
DREAMers
Understandably, much of the drive behind the immigration reform push concerned the undocumented population that was brought here as children. The DREAM Act was one such effort that was previously defeated. However, last year, the Obama administration implemented the Deferred Action for Childhood Arrivals (DACA) program, providing deferment of removal (deportation) for people who were brought here as children and meet other requirements. It seems that if there is one issue that (reasonable) legislators across the spectrum can agree on regarding the undocumented, it will be relief for those who were brought here as children. The House bill aims to achieve that through an accelerated pathway to lawful status. As some House aides indicated, immigration reform would not punish DREAMers for having been brought here unlawfully through no fault of their own. A recent statement from conservative Representative Raúl R. Labrador (R-ID), a key part of House negotiations, reflects the mood among representatives drafting the immigration reform bill: “Those who entered the U.S. as children, through no fault of their own, will be allowed to have a pathway to citizenship.”
While Representative Labrador’s statement reflects a welcome change among the Republican-led House, it did cause me to wonder how young undocumented immigrants will qualify for the accelerated pathway under the House reform bill. Will it be necessary to prove 1) they were brought here and 2) that their arrival was by no fault of their own? Given the population in question and purpose behind reform, the requirements of reform legislation will hopefully mirror deferred action (DACA), which does not require either.
What about mom and dad?
With Representative Labrador’s words still echoing in my mind, my next thoughts turned to the parents of DREAMers. If DREAMers shouldn’t be punished, does that mean the parents will? If children who were brought here against their will shouldn’t be blamed, will their parents in some way take the fall? It would appear that the parents of DREAMers would at least qualify for probationary status under the House reform bill’s third category, assuming they pass background checks, pay fines and back taxes, and learn English. However, would the fact that an undocumented parent brought his or her child into the U.S. unlawfully affect eligibility or compromise status at some point?
Under the current law, smuggling is a ground for denying admission and for ordering removal (deportation). “Smuggling” is defined broadly under immigration law to include those who transport individuals illegally into the U.S., but also those who encourage, induce, assist, or aid another individual’s unlawful entry. As a ground of inadmissibility, smuggling would prevent a permanent resident (green card) applicant from being approved, unless he or she qualified for a waiver or the automatic exemption. The government may waive the smuggling penalty for humanitarian reasons, to assure family unity, or when it is otherwise in the public’s interest, but only for certain permanent residents and for certain family-based permanent resident applicants. The law also carves out an exemption pursuant to the Immigration Act of 1990.
It is unknown if and how immigration reform will impact the smuggling bar and vice versa. As the bills are released and debated, that is one issue to keep an eye on. If DREAMers are going to qualify for an accelerated pathway, will they have to throw mom and dad under the bus to prove eligibility as individuals who were brought here as children at no fault of their own? I would hope not, and I believe not, based on how DACA applications are being processed. However, that is not to say that parents of DACA recipients or DREAMers will not eventually face questions about how their foreign-born children entered the U.S. It seems like a cruel approach, but that issue has already appeared at immigrant visa interviews in Ciudad Juarez, Mexico. That practice has great relevance to current applicants for provisional waivers, which only waive certain unlawful presence bars.
If the smuggling bar stands, I would expect (and hope) that those who qualify for immigration reform would be exempt. At the very least, I hope that the government would apply a minimal threshold for granting a waiver for humanitarian reasons, to ensure family unity, or to serve in the best interests of the public. To do otherwise would defeat the purpose of immigration reform and the value of keeping families together.
*If you have questions or concerns about the smuggling bar or how immigration reform may apply to you, please contact me or another experienced immigration attorney.