How will the Senate’s immigration bill shake up the regulatory field?

November 15, 2013

Immigration LawEarlier this week, House of Representatives Speaker John Boehner signaled his refusal to negotiate with the Senate on a sweeping immigration reform bill – the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (commonly called “S. 744”) – that Congress’s upper house had passed earlier this year.

The House is controlled by Republicans, who have traditionally opposed the sort of immigration reform represented by the Senate bill.  However, considering that 13 Republican senators voted in support of the bill, opposition among Republicans is not unanimous, and the proposed law may yet gain traction in the House.

If such a law does pass, what are the potential ramifications on the legal field?

The bill is very extensive, so it would be hard to summarize its entire impact on the legal field in the scope of a single blog post.

There are, however, some particular provisions that are certainly worth discussing.

The first of these is the creation of a new immigration status: registered provisional immigrant (RPI), available to those currently considered as “unlawfully present” in the U.S.

Individuals granted RPI status will no longer be considered “unlawfully present” in the U.S. effective as of the date they filed their application.

In addition, those with RPI status will be allowed to be legally employed in the U.S., travel outside of the U.S., and be eligible to obtain Social Security numbers.

In short, the creation of the RPI status offers an actual path to citizenship for those currently living in the U.S. without documentation.

There are several requirements for obtaining RPI status.  First, a person must have been continuously present in the U.S. from December 31, 2011, until granted RPI status (except for “brief, casual and innocent” or authorized departures).

Second, the applicant must not have any convictions of certain types of crimes (these include felonies, aggravated felonies, three or more misdemeanors, and unlawful voting).

Third, RPI applicants must pay any outstanding federal taxes assessed by the Internal Revenue Service, and continue to pay taxes during the application process.

Fourth, a fee of $1000 will be assessed by the U.S. Department of Homeland Security (DHS) to cover the cost of the application (it may be paid in installments).

Finally, individuals seeking RPI status must file within one year from the date that DHS publishes final regulations implementing the bill’s provisions (the DHS secretary has the option to extend this time limit to 18 months).

Once RPI status is achieved, the path to citizenship can begin: the status itself may be renewed every six years, and after ten years in RPI status, an individual may apply to “adjust” to lawful permanent resident (LPR or “green card”) status.

And after an additional three years in LPR status, an individual may apply for U.S. citizenship.

But the creation of the RPI status isn’t the only major path to citizenship offered by the bill; the proposed act also incorporates many central provisions of the proposed DREAM (Development, Relief, and Education for Alien Minors) Act.

As could be gleaned from the title, the benefits offered by the DREAM Act are aimed primarily at minors, and the provisions integrated into S. 744 have the same purpose.

Specifically, S. 744’s DREAM provisions would allow eligible individuals (or “DREAMers”) to apply for RPI status just the same as any adult.  However, it would only be five years – rather than ten – until such an individual may apply to “adjust” to LPR status.  Furthermore, once granted LPR status, a DREAMer is immediately eligible to apply for citizenship.

To be eligible for this expedited path to citizenship, an individual must have (1) entered the U.S. before the age of 16; (2) earned a high school diploma or GED; and (3) received a degree from an institution of higher education or completed 2 years in a program for a bachelor’s or higher degree or served honorably for 4 years in the military.

These requirements are in addition to those listed for RPI applicants – except that those who are under the age of 21 and those who entered the U.S. under the age of 16 are not subject to the fines.

Although these are only two of the many provisions of S. 744, both of them would forever reshape the face of immigration law as we currently know it.  Instead of a high likelihood of forever being trapped in legal limbo, those who enter the country unlawfully would have a clear, attainable option for attaining citizenship.

Whether S. 744 becomes law is still uncertain.  But if it or a similar bill passes, immigration law (and, to lesser degrees, other legal areas such as family law and criminal law) will have to redraw its practice maps to successfully navigate the new field.