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What You Need to Know About Biden Administration’s Proposed U.S. Citizenship Act of 2021

What You Need to Know About Biden Administration’s Proposed U.S. Citizenship Act of 2021

  • Provisions include annual per-country limits on family-based immigration, work permits to dependents of H-1B visa holders and expanding the number of green cards available to employment-based immigrants.

The bill states as its purpose “to provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes.

 Some of the highlights:

* Offers an eight-year path to citizenship for millions of people who were living in the United States unlawfully on Jan. 1, 2021. They would be eligible to apply for a green card after five years in a temporary status if they pass background checks and pay their taxes, and could then apply for citizenship three years later.

* Allows people with Deferred Action for Childhood Arrivals (DACA) protection, a group known as “Dreamers”, who were brought to the United States illegally as children, farmworkers and people with Temporary Protected Status to immediately apply for a green card if they meet specific requirements. They would have a three-year path to citizenship.

* Permits certain immigrants who were deported during the Trump administration and had previously lived in the United States for three years to return to reunite with family or for other humanitarian reasons.

* Raises annual per-country limits on family-based immigration and eliminates them for employment visas.

* Exempts spouses and children of green card holders from employment-based immigration quotas, expanding the number of green cards available to employment-based immigrants.

* Scraps multi-year bars to re-entry for certain people who lived in the United States illegally and then left.

* Clears family-based and employment-based visa backlogs.

* Provides work permits to dependents of H-1B visa holders.

* Authorizes regional processing centers in Central America to register and process people for refugee resettlement and other legal migration programs.

* Authorizes funding for legal counsel for vulnerable populations of migrants, such as children.

* Increases the number of immigration judges working in the court system.

* Eliminates the one-year filing deadline for asylum applications.

* Changes the word “alien” to “noncitizen” in U.S. immigration laws.

Details of Subtitle A – Earned Path to Citizenship

Section 1101. Lawful Prospective Immigrant Status.

A new Section 245B is added to the Immigration Nationality Act (INA) that says DHS may grant lawful prospective immigrant status to a noncitizen (and spouse and children) who 1) meets the requirements in in new Section 245G(b), including criminal/security checks and paying fees and 2) submits an application. Spouses and children don’t have to submit a separate petition.

The initial period of authorized admission for a “lawful prospective immigrant” (LPI) is 6 years (unless revoked) and may be extended for additional 6-year terms if the LPI remains eligible, has passed background checks and has not had the status revoked.

LPIs will be given “documentary evidence of LPI status” – card – and be valid for 6 years.

LPIs will be considered lawfully present in the U.S. for all purposes except they will not be eligible for certain ACA benefits and tax credits.

LPIs are authorized to be employed.  They are authorized to travel with their LPI document or a travel document approved by DHS if the original LPI document is lost, stolen or destroyed. Time outside the US is limited to 180 days in a calendar year unless DHS authorizes longer absences or the excessive time was beyond the LPI’s control (and the LPI isn’t inadmissible on certain national security or foreign policy grounds).

SSA shall grant Social Security Numbers to LPIs. LPIs are allowed to join the US Armed Forces.

Section 1102. Adjustment of Status of Lawful Prospective Immigrants

A new Section 245C is being added to the INA to provide for adjusting LPIs. DHS may adjust LPIs to Lawful Permanent Resident (LPR) status if

  1. The applicant still meets LPI requirements and passes background checks and pays fees
  2. Submits an application under special procedures
  3. Has been an LPI for at least 5 years
  4. Remains eligible for LPI status
  5. Hasn’t been absent for more than 180 days (except as provided in Section 1101)

 Grounds of inadmissibility under Section 212(a) previously waived won’t apply.

 All federal taxes must be paid.

Section 1103. The DREAM Act. 

Adds a new Section 245D for adjustment of status for certain noncitizens who entered the U.S. as children.

 LPR status may be granted to a noncitizen if the noncitizen

  1. Satisfies the eligibility requirements in Section 245G(b) (see Section 1101) including background checks and paying required fees.
  2. Submits an application
  3. Was younger than 18 years when entering the country initially
  4. Has a high school diploma, commensurate alternative award from a public or private high school, a GED certificate recognized under state law or a high school equivalency diploma
  5. Has obtained a college degree (at least associate’s level and leading to a bachelors or higher or a recognized postsecondary credential from an area career and technical education school), has served in the Armed Services for at least two years or, if discharged, was honorably discharged, or has earned income for at least 3 years working at least 75% of the time the person had valid work authorization (except for people enrolled in a higher education program and they would get credit for that time toward the 3 years).
  6. Has registered for Selective Service if required.

The above requirements can be waived if there are compelling circumstances showing an inability to satisfy them. Spouses and children of people eligible to adjust under the DREAM Act can also adjust. A streamlined program will be created for people in the DACA program who are eligible for renewal of DACA.

See Also

The rule barring DACA recipients from accessing the Affordable Care Act are being rescinded and the five-year requirements for accessing Medicaid and CHIP are also not applicable. Provisions also are included making DACA recipients eligible for FHA, Rural Housing Service, Fannie Mae and Freddie Mac mortgages.

 Section 1104. The American Promise Act.

This section provides for the adjustment of status of TPS and DED recipients. A new INA Section 245E is added.

DHS may grant LPR status to a noncitizen who meets the requirements of 245G(b), including criminal/security background checks and the payment of all fees:

  1. Submits an application pursuant to 245G(b)(1)
  2. Has been physically present since 1/1/2017; and
  3. Is a national of a foreign state, or if stateless, last habitually resided in such foreign state, with a TPS/DED designation under §244(b) on 1/1/2017
  4. Spouses and children are eligible

 Clarifies that TPS recipients are considered “inspected and admitted to the US” under Section 244(f)(4). This provision codifies what a couple of circuit courts have held and makes it possible for TPS recipients to adjust status.

 Section 1105. The Agricultural Workers Adjustment Act. 

This section provides for the adjustment of status of certain agricultural workers via a new Section 245E of the INA. DHS may grant LPR status to a noncitizen if meets the requirements of 245G(b), including criminal/security background checks and the payment of all fees;

  1. Submits an application pursuant to 245G(b)(1);
  2. Determines that, during the 5-year period immediately preceding the date on which the noncitizen submits and application under this section, the noncitizen performed agricultural labor or services for at least 2,300 hours or 400 work days.
  3. Spouses and children are eligible and they don’t have to meet the work requirement.

 “Agricultural labor or services” has the same meaning as used in H-2A visa processing and means agricultural employment without regard to whether the work is seasonal or temporary.

 Section 1106. General Provisions Relating to Adjustment of Status.

This section covers the new benefits and INA sections created above (245B, 245C, 245D, and 245E). A new INA 245G is created and notes common eligibility requirements of these four sections:

 The noncitizen shall submit a completed application to DHS.

  • Noncitizens over 18 will pay a fee to be determined by DHS (enough to cover the costs of administering the program). DHS may limit the maximum fee payable by a family and also waive the fee for good cause.
  • The noncitizen must be physically present in the US on the date the application is submitted and have been continuously physically present in the US beginning on 1/1/2021 and ending when the application is approved. Exceptions if DHS approved travel during this period as well as brief, casual and innocent absences (which will not include absences of more than 180 days unless DHS determines the absence was involuntary). A Notice to Appear will not disrupt the continuity of physical presence.
  • Noncitizens removed on or after 1/1/2017 who were physically present in the US for at least 3 years prior to that, may apply if DHS waives for humanitarian reasons, to ensure family unity, or a waiver is otherwise in the public interest and the person hasn’t reentered the US illegally after 1/1/2021.
  • DHS shall set a procedure to apply for adjustment under this section.

Grounds for ineligibility:

Criminal (felony or 3+ misdemeanors (excluding possession of marijuana)), national security, noncitizen smuggling, draft dodging, international child abductions, renunciation of U.S. citizenship to avoid taxes. Waivers available for humanitarian reasons, family unity, or if in the public interest and crime within last ten years. Waivers available of 1 misdemeanor if no convictions in prior 5 years and 2 misdemeanors if no convictions in the prior 10 years. Mitigating and aggravating factors are to be considered in the waiver adjudication (including underlying circumstances, duration of residence, rehabilitation and how denial would affect the noncitizen or family.

  • Noncitizens who are LPRs, admitted as refugees or are asylees, nonimmigrant visa holders [the text appears to incorrectly limit to A visa holders, but then includes exceptions some exceptions including H-2A visa holders which only makes sense if all NIV categories are included. Aside from H-2As, spouses and kids in NIV status otherwise eligible are excepted as well as those engaged in “essential critical labor or services during the COVID emergency.” This exception was incorporated in the Heroes Act and is a very broad list and COVID is tied to the date the emergency was declared by Trump until 90 days after the public health emergency declared over.
  • Ineligible if departed the US while subject to an exclusion, deportation, removal or voluntary departure order and was outside the U.S. on 1/1/2021 or reentered unlawfully after 1/1/2021.

Applicants must submit biometric and biographic data (alternative procedures if a physical impairment prevents). Background checks must be completed before status granted.

Amy Ghosh is a practicing lawyer in Los Angeles. She migrated to U.S. in 1987 and has been married to a (retired) rocket scientist for 35 years. She has two adult children. Before becoming an attorney, she was a bio-chemist and worked for several well-known hospitals and laboratories. Amy continues to be very much in touch with her motherland India and her favorite city Calcutta. She has recently produced a Bengali movie “Urojahaj —The Flight” by highly acclaimed film maker Buddhdeb Dasgupta. She is continually looking for meaningful opportunity to contribute to the society through her legal and social work.

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