FEDERATION FOR AMERICAN IMMIGRATION REFORM SUMMARY: S. 744 Registered Prvisinal Immigrant Status, the DREAM Act & AgJOBS On April 17, 2013, Senatrs Chuck Schumer, Jhn McCain, Dick Durbin, Lindsay Graham, Bb Menendez, Marc Rubi, Michael Bennet, and Jeff Flake intrduced S.774, entitled the Brder Security, Ecnmic Opprtunity, and Immigratin Mdernizatin Act. If passed, S.744 wuld grant amnesty t the apprximately 12 millin illegal aliens currently living in the U.S., admit hundreds f thusands f new agricultural and lw-skilled guest wrkers, and significantly increase legal immigratin. Belw is a summary f three majr amnesty prvisins in the bill. The first is the blanket amnesty prvisin, which authrizes the Department f Hmeland Security (DHS) t grant legal status called registered prvisinal immigrant status (RPI status) t illegal aliens wh have been in the United States since December 31, 2011. The secnd amnesty prvisin is the DREAM Act, which authrizes DHS t give green cards t RPI aliens wh entered the U.S. befre the age f 16 and meet certain additinal requirements. The third amnesty prvisin is AgJOBS, which in this bill is called the Agricultural Wrker Prgram reminiscent f the Special Agricultural Wrker Prgram that was part f the 1986 amnesty (Immigratin Refrm and Cntrl Act). AgJOBS grants amnesty t illegal farm wrkers wh can demnstrate they have wrked in agriculture fr a required perid f time. I. Registered Prvisinal Immigrant Status General Authrizatin (Sec. 2101, INA 245B(a), p.59-60) After cnducting required backgrund checks, DHS may grant registered prvisinal immigrant (RPI) status t an alien wh: Is eligible; Applies n time; Submits bimetric and bigraphic data (Sec. 2101, INA 245B(c)(8), p. 78-79); and Pays an unspecified fee and a $1,000 penalty, payable in installments. DHS may exempt defined classes f individuals frm the fees, including DREAMers. (Sec. 2101, INA 245B(a), p.60)(see als Sec. 2101, INA 245B(c)(10), p. 81-84). Duratin f Status and Extensin (Sec. 2101, INA 245B(c)(9), p.79-84) RPI status is valid fr 6 years and renewable indefinitely
An alien is eligible t renew if he/she: Remains eligible fr RPI status; Meets certain emplyment/educatin requirements (waivable), which require the alien t establish that he/she Was regularly emplyed thrughut RPI status (60-day perids excepted); Is nt likely t becme a public charge; and Is able t demnstrate average incme nt less than the pverty level (100 percent f the federal pverty level) thrughut RPI status. Has nt had his/her RPI status revked; Has satisfied any federal tax liability that has been assessed ; Pays a prcessing fee (aliens 16 r lder), thugh DHS may cap and/r waive the fees. (p.83); and Pays a $1,000 penalty (aliens 21 r lder). Terms and Cnditins f RPI Status (Sec. 2101, INA 245(d), p.87) RPI aliens shall be wrk authrized RPI aliens may travel utside the U.S. and be re-admitted if: The alien has a valid RPI dcument that meets certain security requirements The alien s absence did nt exceed 180 days, unless the alien s failure t timely return was due t extenuating circumstances The alien meets the requirements fr an extensin and The alien establishes that he is nt inadmissible as a natinal security threat RPI aliens shall be cnsidered t have been admitted t the U.S. and lawfully present and in RPI status as f the applicatin date. An RPI alien: Is lawfully admitted t the U.S. and May nt be classified as a nnimmigrant r an LPR Eligibility Requirements (Sec. 2101, INA245B(b), p.60-68) An alien must demnstrate by a prepnderance f the evidence that the alien: Is physically present in the U.S. n the date f applicatin Has been physically present in the U.S. n r befre 12/31/11, except absences that are brief, casual, and inncent Has maintained cntinuus physical presence (except absences up t 180 days) in the U.S. frm Dec. 31, 2011 until receiving RPI status Waivers (Sec. 2101, INA 245B(b)(4), p.66) Page 2
Civil penalties fr failure t depart under INA shall nt bar any alien frm filing an RPI applicatin Frivlus applicatins fr asylum shall nt bar an alien applying fr RPI status Dependents f RPI aliens may apply fr derivative status even if they were nt in the U.S. befre 12/31/11 and did nt have cntinuus presence in the U.S. since that date. (Sec. 2101, INA 245B(b)(5)(A), p.66) DACA Recipients (Sec. 2101, INA 245B(c)(13), p.86) DHS may grant RPI status t DACA recipients, unless the alien has engaged in cnduct since the alien was granted DACA that wuld make the alien ineligible fr RPI status. Eligibility After Departure (Sec. 2101, INA245B(c)(6), p.71) An alien utside the U.S. wh: (1) departed while subject t a remval r vluntary departure rder; r (2) reentered illegally after 12/31/11, may nt apply fr RPI status DHS may waive this if the alien: Is the spuse/child f a U.S. citizen r LPR; Is the parent f a child wh is a U.S. citizen r LPR; Entered the U.S. befre 16, has a high schl degree r GED in the U.S.; r Was yunger than 16 n the date he/she initially entered the U.S., is 16 years r lder n the date f applicatin, and was physically present in the U.S. fr at least 3 ut f the 6 years prir t enactment Fr purpses f the waiver, aliens are eligible despite failure t meet the physical presence requirement r any reinstatement f remval rders. Grunds fr Ineligibility (Sec. 2101, INA 245B(b)(3), p.61-66) An alien is ineligible fr RPI status if he/she: Has a cnvictin fr a felny in the cnvicting jurisdictin (ther than a state r lcal ffense based n immigratin status) Has a cnvictin fr an aggravated felny as defined under 101(a)(43) Has a cnvictin fr 3 r mre misdemeanrs (ther than a state/lcal ffense based n immigratin status) if the alien was cnvicted n different dates fr each f the ffenses (waivable, p.65)(sec. 2102(b)(3)(B)(i)) Has a cnvictin fr any ffense under freign law that if cmmitted in the U.S. wuld render the alien inadmissible r remvable under the INA (INA 212(a); 237(a)) Has a cnvictin fr unlawful vting under INA 237(a)(6) Is reasnably believed t be engaged in, r likely t engage in, terrrist activity (Sec. 2102(b)(3)(A)(iii) Page 3
Is an LPR, a refugee/asylee, r a nnimmigrant (meaning the alien is legal) (2102(b)(3)(A)(iv) Grunds f Inadmissibility Waived (Sec. 2101, INA 245B(b)(3), p.63) Public charge (INA 212(a)(4)) Alien wrkers withut labr certificatin (INA 212(a)(5)) Aliens present withut permissin r parle (INA 212(a)(6)(A)) Aliens wh fail t attend remval prceedings (abscnders) unless after applicatin (INA 212(a)(6)(B)) Aliens seeking admissin within 5 years f being rdered remved unless after applicatin (INA 212(a)(9)(A)) Aliens wh btain immigratin dcuments thrugh fraud unless after enactment (INA 212(a)(6)(C)(i)) Aliens wh falsely claim citizenship unless after enactment (INA 212(a)(6)(C)(ii)) Stwaway aliens unless after enactment (INA 212(a)(6)(D)) Aliens subject t a final rder f remval fr dcument fraud unless after enactment (INA 212(a)(6)(F)) Alien students wh vilate terms f their visas unless after enactment (INA 212(a)(6)(G)) Immigrants wh d nt pssess prper dcuments (INA 212(a)(7)(A)) Nnimmigrants wh d nt pssess prper dcuments (INA 212(A)(7)(B)) 3 and 10 year bars based n the duratin f unlawful presence in the U.S. (INA 212(a)(9)(B)) Aliens illegally in the U.S. fr 1+ yrs, wh are rdered remved and attempt t re-enter unless after enactment (INA 212(a)(9)(C)) Guardians required t accmpany inadmissible, disabled aliens unless after enactment (INA 212(a)(10)(B)) Grunds f Inadmissibility DHS may NOT Waive (Sec. 2101, INA 245B(b)(3)(B)(ii), p.65) Aliens cnvicted f 2+ ffenses fr which the aggregate prisn sentences are 5+ years (INA 212(a)(2)(B)) Aliens wh are/were drug traffickers (INA 212(a)(2)(C)) Aliens wh have imprted r attempted t imprt prstitutes r receive prceeds therefrm within 10 yrs f applicatin fr a visa (INA 212(a)(2)(D)) Aliens wh cmmit a serius criminal ffense, claim immunity, and leave the U.S. (INA 212(a)(2)(E)) Freign fficials wh have cmmitted severe vilatins f religius freedm (INA 212(a)(2)(G)) Page 4
Human traffickers ( severe frms f human trafficking, nt sns r daughters) INA212(a)(2)(H) Mney launderers (INA 212(a)(2)(I)) Aliens wh have engaged/incited terrrist activity r wh are members/representatives f a terrrist rganizatin (INA (a)(3)(b)(i)) Practicing plygamists (INA 212(a)(10)(A)) Internatinal child abductrs (until surrender f child t lawful custdian/parent) (INA 212(a)(10)(C)) Aliens wh vte in vilatin f federal, state, r lcal laws (INA 212(a)(10)(D)) Frmer citizens wh renunce citizenship t avid taxes (INA 212(a)(10)(E)) Aliens wh btain, attempt t btain admissin dcuments thrugh fraud if related t an RPI applicatin (INA 212(a)(6)(C)(i)) Grunds f Inadmissibility that are Waivable (Sec. 2101, INA245B(b)(3)(B)(i), p.65) Cmmitting crimes r f mral turpitude (INA 212(a)(2)(A)(i)(I)); Vilating federal r state drug laws (INA 212(a)(2)(A)(i)(II)); Trafficking in passprts (INA 212(a)(2)(A)(i)(III))(added t the INA by 3709); Prviding fraudulent immigratin services (INA 212(a)(2)(A)(i)(III))(added t the INA by 3709); Trafficking immigratin dcuments, including dcument fraud (INA 212(a)(2)(A)(i)(III)) (added t the INA by 3709); Prstitutin (INA 212(a)(2)(D)(i)); Gang membership (INA 212(a)(2)(F))(added t the INA by 3701); Misrepresenting a material fact t prcure visas r ther immigratin benefits (if dne fr any purpse ther than submitting an amnesty applicatin) (INA 212(a)(6)(C)(i)); Vilating student visas (INA 212(a)(6)(G)); Falsely claiming citizenship (INA 212(a)(6)(C)(ii)); and Illegally re-entering the U.S. after deprtatin (a felny)(ina 212(a)(9)(C). Applicatin Prcess (Sec. 2101(c), p.68) RPI applicants shall be treated as applicants fr admissin An alien may nt file an RPI applicatin unless the applicant has satisfied all federal incme taxes assessed in accrdance with the tax cde. Applicatin perid begins n the date DHS publishes a final rule, lasts ne year, and may be extended fr anther year. As part f the rule: DHS may create a family applicatin DHS may interview applicants Page 5
Shielding Illegal Aliens During the Amnesty Prcess (Sec. 2101, INA 245B(c)(5), p.70) Illegal Aliens Wh Have Nt Applied If alien is apprehended between the date f enactment and the end f the applicatin perid and appears prima facie eligible fr RPI status, DHS: Shall prvide the alien an pprtunity t file a timely applicatin; and May nt remve the individual fr any reasn until a final administrative determinatin is made n the applicatin (apparently allw the aliens time t appeal an adverse decisin befre DHS can remve the alien). Illegal Aliens Wh Have Applied (p.76-77) Between the date an alien files an RPI applicatin and the date DHS makes a final decisin n the applicatin, an alien: may receive advance parle if urgent humanitarian circumstances cmpel such travel; may nt be detained r remved fr any reasn unless DHS first makes a prima facie determinatin that the alien is r has becme ineligible; shall nt be cnsidered unlawfully present fr purpses f the 3 and 10 year bars t admissin; shall nt be cnsidered an unauthrized alien fr emplyment purpses; and shall receive dcumentatin that the alien has filed an applicatin. An emplyer wh knws that an alien is an RPI applicant r will apply fr RPI status is nt in vilatin f INA 274(a)(2) fr cntinuing emplyment f an illegal alien pending adjudicatin f the applicatin. Aliens in Remval Prceedings (p.73) If DHS determines that an alien, between enactment and the end f the applicatin perid, is in remval prceedings befre the Justice Department s Executive Office fr Immigratin Review (EOIR) and is prima facie eligible fr RPI status: DHS shall give the alien an pprtunity t file an RPI applicatin EOIR shall, upn mtin by DHS r the alien terminate remval prceedings w/ prejudice, and the alien a reasnable pprtunity t apply IF EOIR determines that an alien, during the applicatin perid, is in remval prceedings befre EOIR and is prima facie eligible fr RPI status: EOIR shall ntify DHS, and Page 6
If DHS des nt dispute the determinatin f prima facie eligibility w/n 7 days, EOIR shall: terminate such prceedings w/ prejudice, and give the alien a reasnable pprtunity t apply Aliens Ordered Remved (Sec. 2101, INA 245B(c)(7), p.75) An alien in the U.S. wh has been rdered remved (including vluntary departure, but meets the eligibility requirements, is eligible t apply fr RPI status ntwithstanding the remval rder (r a reinstatement theref). Shielding Infrmatin in Applicatins (Sec. 2104 p.117) N fficer r emplyee f any federal agency may: Use applicatin infrmatin submitted fr RPI status r green cards (including the DREAM Act) fr any purpse ther than t make a determinatin n any applicatin fr any immigratin benefit r prtectin Make any publicatin thrugh which a particular applicant can be identified Permit anyne ther than the swrn fficers, emplyees, and cntractrs f such agency r anther agency apprved by DHS t examine individual applicatins that have been filed DHS shall prvide infrmatin submitted in applicatins fr RPI status and green cards (including the DREAM Act), and any infrmatin derived therefrm, t: A law enfrcement agency, curt, r grand jury if the infrmatin is requested by such entity, cnsistent with law, in cnnectin with: A criminal investigatin r prsecutin f any matter nt related t the applicant s immigratin status; r A natinal security investigatin r prsecutin. An fficial crner fr purpses f affirmatively identifying a deceased individual DHS may audit infrmatin submitted in applicatins fr RPI status and green cards (including the DREAM Act) fr purpses f identifying fraud and use any evidence detected by such audits fr purpses f investigating, prsecuting, denying r terminating immigratin benefits. Emplyment recrds supplied by an alien r emplyer t supprt an alien s applicatin fr RPI status may nt be used in a civil r criminal prsecutin r investigatin f that emplyer under INA 274A regardless f the utcme f the applicatin. Emplyers that prvide unauthrized aliens with cpies f emplyment recrds fr an RPI applicatin shall nt be subject t civil and criminal liability under INA 274A. Adds a new sectin t the criminal cde which prvides that any persn wh knwingly uses, publishes, r permits infrmatin described applicatin infrmatin t be examined Page 7
in vilatin f such sectin shall be fined nt mre than $10k. Such fine shall be submitted t the CIR trust fund. (Sec. 2105, p.130) Opprtunity fr Illegal Aliens t Challenge Denial f Amnesty and/r Green Cards (these prvisins als apply t aliens btaining amnesty thrugh the DREAM Act r AgJOBS) (Sec. 2104, INA 245E(c), p. 120) Administrative Review DHS shall prvide fr a single level f administrative appellate review f a determinatin f applicatins under prvisins granting RPI status r green cards t illegal aliens (including aliens applying thrugh the DREAM Act r AgJOBS) Administrative review f determinatin n an applicatin fr RPI status r green cards shall be cnducted slely in accrdance with this subsectin Aliens whse applicatins fr RPI status r green cards have been denied r revked may file nly ne appeal with DHS Such appeal shall be filed nt later than 90 days after the date f denial r revcatin, unless the delay is reasnably justifiable Aliens seeking administrative review shall nt be remved frm the U.S. (fr any reasn) until a final decisin establishing ineligibility has been made Administrative appellate review shall be de nv and based n: (1) the administrative recrd, and (2) any new evidence. During the perid f administrative review, the alien shall nt be cnsidered unlawfully present fr purpses f the 3 and 10 year bars Judicial Review (Sec.2104(b), p.124) If DHS denies RPI status, r revkes RPI status after exhaustin f administrative remedies, the alien may seek review f such decisin in federal curt While the federal curt reviews the case: The alien shall nt accrue unlawful presence fr purpses f the 3 and 10- year bars; Any unexpired time fr vluntary departure shall be tlled, and The curt shall have discretin t stay the executin f any remval rder. An alien may appeal an adverse decisin in a federal circuit curt f appeals in cnjunctin with the judicial review f an rder f remval if the validity f the denial has nt been upheld by the district curt Judicial review shall be based n the administrative recrd established at the time f review A curt may remand the case t DHS fr cnsideratin f additinal evidence if the curt finds that: The additinal evidence is material, and Page 8
There were reasnable grunds fr failure t adduce the additinal evidence befre the Secretary. Federal curts may hear cases challenging a DHS pattern r practice in the implementatin f the amnesty that is arbitrary, capricius, r therwise cntrary t law. District curts may rder any apprpriate relief fr such challenges withut regard t exhaustin, ripeness, r ther standing requirements (ther than cnstitutinally mandated requirements) if the curt determines that: The reslutin f such cause r claim will serve judicial and administrative efficiency, r A remedy wuld therwise nt be reasnably available r practicable. Except fr challenges t patterns r practices (abve), any claim that the prvisins granting RPI status, green cards (including the DREAM Act), the prtectin f applicatin infrmatin, and the appeals prcess, r any regulatin, written plicy, r written directive, issued r unwritten plicy r practice initiated under the authrity f the Secretary f DHS vilates the cnstitutin r therwise vilates the law, is available exclusively in U.S. district curt. Class actin claims shall be made in cnfrmity with the Class Actin Fairness Act and the Federal Rules f Civil Prcedure N claims brught under this paragraph shall require the plaintiff t exhaust administrative remedies Curts may stay prceedings t permit DHS t evaluate an allegatin f an unwritten plicy r practice r t take crrective actin. Prvides that current law (INA 244(h) requiring the Senate t have a super majrity t pass any law that grants green cards t aliens with temprary prtected status (TPS) shall nt apply t aliens applying fr green cards under the amnesty r DREAM Act prvisins (thus placing TPS aliens n the path t citizenship) Prvides that failure t register pursuant t 8 CFR 264.1(f) (special registratin fr aliens frm certain designated cuntries) r being subject t a remval rder fr nncmpliance befre the date f enactment shall nt make an alien ineligible fr any benefits under the INA Evidence f RPI Status (Sec. 2101, INA 245B(c)(12), p.85) DHS shall issue dcumentary evidence f RPI status t aliens with apprved applicatins. These dcuments: Shall be machine-readable, tamper-resistant, and cntain a digitized phtgraph Shall serve as valid f travel/entry dcuments fr the purpse f applying fr admissin May be accepted by an emplyer as evidence f wrk authrizatin and identity Page 9
Shall indicate the alien is authrized t wrk fr up t 3 years Shall include any ther features determined by DHS Revcatin f RPI Status (Sec. 2101, INA 245B(d)(2), p.89) DHS may (but des nt have t) revke RPI status at any time after giving apprpriate ntice t the alien, and after the exhaustin r waiver f all applicable administrative review prcedures, IF the alien: Is n lnger eligible; Knwingly used RPI dcuments fr fraud; Was absent frm the U.S. fr t lng, either: A single perid lnger than 180 days, r Mre than 180 days in a calendar year, unless there are extenuating circumstances. If DHS revkes RPI status, any dcumentatin issued shall autmatically be rendered invalid fr any purpse except departure Eligibility fr Benefits (Sec. 2101, INA 245B(d)(3), p. 90) Federal means-tested public benefits. An RPI alien is ineligible fr any federal means-tested public benefit (as defined and implemented by 8 U.S.C. 1613) An RPI alien shall be cnsidered lawfully present in the U.S. fr all purpses while in RPI status, except that the alien: Is nt entitled t the tax credit authrized in the Affrdable Care Act (Obamacare) (26 U.S.C. 36B) fr his r her cverage; Shall be subject t the rules applicable t individuals nt lawfully present set frth in subsectin (e) f such sectin; Shall be subject t the rules applicable t individuals nt lawfully present that are set frth in sectin 1402(e) f Obamacare; and Is nt subject t the requirement that individuals btain health care insurance under 26 U.S.C. 5000A(d)(3). Scial Security (Sec. 2101, INA 245B(d)(4), p.91-92) RPI aliens shall receive a scial security number and scial security card Enlistment in the Armed Frces (Sec. 2101(b), p.93) Amends 10 U.S.C. 504 t allw RPI aliens t enlist in the military (current law allws nly citizens and LPRs t enlist) Eligibility t Adjust t LPR Status (Sec. 2102, INA 245C(a) and (b), p. 94) DHS may adjust the status f an RPI alien t LPR status if the alien: Page 10
Was granted RPI status and remains eligible fr such status; Establishes that he/she was nt cntinuusly absent frm the U.S. fr mre than 180 days in any calendar year while in RPI status; Is nt inadmissible (grunds previusly waived shall nt apply); Has nt been ntified that DHS intends t revke the alien s RPI status, unless DHS has subsequently determines nt t revke RPI status; Has satisfied all federal incme taxes assessed while the alien was authrized t wrk as an RPI alien; Establishes that he/she: Was regularly emplyed during RPI status, allwing fr brief perids lasting nt mre than 60 days An alien may satisfy this requirement by submitting gvernment recrds that establish cmpliance by a prepnderance f the evidence An alien unable t submit gvernment recrds may satisfy the emplyment requirement may submit ther dcuments DHS apprves, including bank recrds, emplyer recrds, and swrn affidavits frm nnrelatives wh have direct knwledge f the alien s wrk r educatin An alien may satisfy the emplyment requirement in whle r part by prviding evidence f full-time attendance at An institutin f higher educatin; A secndary schl; An educatin, literacy, r career training prgram designed t lead t placement in pst-secndary educatin, jb training r emplyment, r An educatin prgram assisting students either in btaining a high schl equivalency diplma r GED Is nt likely t becme a public charge; Demnstrates average incme r resurces nt less than 125 percent f the federal pverty level. The emplyment/educatin requirement des nt apply t: Aliens under 21 at applicatin fr first extensin f RPI status; Aliens 60+ at time f applicatin fr extensin f RPI status r 65+ n date f applicatin fr LPR status; Aliens wh have a physical r mental disability, r as a result f pregnancy [drafting errr?]; Dependents f RPI aliens; Any perid in which the alien: Page 11
Was n medical leave, maternity leave, r ther emplyment leave authrized by law Is/was the primary caretaker f a child r anther persn unable t care fr himself Was unable t wrk due t circumstances utside the cntrl f the alien (high unemplyment?) DHS may waive the emplyment r educatin requirement with respect t any alien wh demnstrates extreme hardship t himself r a spuse, parent, r child wh is a U.S. citizen r LPR Has the required English skills An RPI 16 years r lder shall establish that he/she: Meets the English and civics requirements f INA 312, OR Is satisfactrily pursuing a curse f study t achieve an understanding f English and knwledge and understanding f civics (p. 103) English requirement des nt apply t aliens unable t cmply because f a physical r mental impairment DHS may waive the English requirement t RPI aliens 70 years r lder. Registered fr the military selective service, if the alien is subject t registratin n r befre the date RPI status is granted Applicatin Prcess fr LPR Status (Sec. 2102, INA 245C(c), p.104) RPI aliens may apply fr LPR status by submitting evidence required t establish eligibility DHS may nt adjust an RPI alien t LPR status until after DHS certifies that immigrant visas have becme available fr all apprved petitins fr immigrant visas that were filed under sectins 201 and 203 befre the date f enactment DHS may interview LPR applicants DHS may nt adjust an RPI alien t LPR status until renewed natinal security and law enfrcement clearances have been cmpleted DHS shall impse a fee t recver the full cst and submit it int the CIR trust fund. Hwever, DHS may limit the maximum fee payable by a family and exempt defined classes f individuals frm the fee. Aliens 21+ years n the date f intrductin shall pay a $1,000 penalty unless the alien falls under the DREAM Act. The penalty may be paid in installments and shall be submitted t the CIR trust fund. Page 12
RPI aliens may nly adjust t LPR status under prvisins relating t RPI aliens, RPI aliens applying thrugh the DREAM Act, r thrugh the Merit-Based Track Tw system created by Sectin 2302. Naturalizatin (Sec. 2102(c), p.109) Allws all aliens wh are lawfully present in the U.S. and eligible fr wrk authrizatin fr nt less than 10 years befre becming an LPR t naturalize in 3 years (nte that applicants fr admissin frm utside the U.S. still have t wait 5 years) Privacy f Illegal Aliens (Sec. 2104, 245E(d), p.123) DHS shall require apprpriate administrative and physical safeguards t prtect the security, cnfidentiality, and integrity f persnally identifiable infrmatin cllected thrugh RPI applicatins and green card applicatins filed pursuant theret (including the DREAM Act) DHS shall cnduct a privacy impact assessment and a civil liberties impact assessment f the RPI prgram and the DREAM Act during the pendency f the interim final regulatins issued under Sec. 2110 f this Act Grant Prgram t Assist Illegal Aliens (Sec. 2106, p. 131) Authrizes USCIS t establish a $50M prgram (funded by the CIR trust fund) t award grants n a cmpetitive basis t nnprfits t assist illegal aliens applying fr amnesty, green cards, and the DREAM Act under INA 245B, 245C, r 245D. Exemptins Granted t DHS t Implement the Amnesty Act (Sec. 2108, p.142) Exempts DHS frm gvernment cntracting and hiring rules t implement all f the amnesty prgrams under the Act. Authrizes DHS t make term, temprary, limited, and part-time appintments f emplyees wh will implement this title and the amendments made by this title withut regard t the number f such emplyees, their rati t permanent full-time emplyees, and the duratin f their emplyment. II. The DREAM Act (Sec. 2103, p.110) General Authrity (Sec. 2103(b), INA 245D(b), p. 111) DHS may adjust the status f an RPI alien t LPR status if the alien demnstrates that: The alien has been an RPI alien fr at least 5 years; Page 13
The alien was yunger than 16 n the date f initial entry t the U.S.; Has earned a high schl diplma, a cmmensurate alternative award frm a public r private high schl r secndary schl, a GED, r a high schl equivalency diplma in the U.S.; He/she satisfies the fllwing educatin/service requirement: Has cmpleted at least 2 years at an institutin f higher educatin fr a bachelr s degree r higher, OR Has served in the Unifrmed Services (nt armed frces) fr at least 4 years (with an hnrable discharge, if any) Has prvided DHS a list f each secndary schl the alien has attended in the U.S. He/she has prvided bimetric and bigraphic data and undergne backgrund checks DHS may waive the educatin/service requirement if the alien demnstrates cmpelling circumstances fr the inability t satisfy the requirement Applicatin Prcess (Sec. 2103(b), INA 245D(b)(2), p. 114) An RPI alien seeking LPR status must submit an applicatin DHS shall evaluate each applicatin and ntify the alien f his/her status adjustment r an adverse determinatin DHS may adpt regulatins that implement streamlined prcedures fr DACA aliens Naturalizatin (Sec. 2103(b), INA 245D(b)(3), p.116) An alien granted LPR status under the DREAM Act shall be cnsidered t have been in the U.S. as an LPR during the 5-year perid he/she was an RPI alien (allwing the alien t immediately apply fr naturalizatin upn receiving LPR status) Exemptin frm Numerical Caps (Sec. 2103(c), p. 116) RPI aliens r DREAMers wh adjust t LPR status are exempt frm all numerical caps under INA 201(b) In-State Tuitin (Sec. 2103, INA 245D(d), p. 117) Retractively repeals 8 U.S.C. 1623 (Sec. 505 f IIRAIRA), thereby authrizing states t ffer in-state tuitin t illegal aliens III. Agricultural Wrker Prgram f 2013 (AgJOBS) Page 14
Definitins (Sec. 2202, p. 152-153) Blue card status means the status f an alien lawfully admitted int the U.S. fr temprary residence under Sec. 2111 Agricultural emplyment has the same meaning given in sectin 3 f the Migrant and Seasnal Agricultural Wrker Prtectin Act, withut regard t whether the service r activity is temprary r seasnal Child has the same meaning as under INA 101(b)(1) Emplyer means any persn r entity, including a farm labr cntractr and any agricultural assciatin that emplys wrkers in agricultural emplyment Qualified Designated Entity (QDE) means: A qualified farm labr rganizatin r assciatin f emplyers designated by DHS, r Any ther entity DHS designates as having substantial experience, demnstrated cmpetence, and a histry f lng-term invlvement in the preparatin and submissin f applicatins fr adjustment f status under the INA. Wrk day means any day in which the individual is emplyed 5.75 r mre hurs in agricultural emplyment General Authrizatin (Sec. 2211(a), p.153) After cnducting natinal security and law enfrcement clearances required fr RPI status, DHS may grant blue card status t an alien (including spuses and children) wh: Perfrmed agricultural emplyment in the U.S. fr at least 575 hurs r 100 wrk days during the 2-year perid ending Dec. 31, 2012); Submits a cmpleted applicatin n time Is nt ineligible fr RPI status (exceptin allws H-2As t apply) DHS shall cllect frm each applicant bimetric, bigraphic, and ther data that DHS determines apprpriate t: Cnduct natinal security and law enfrcement clearances ; and Determine whether there are any natinal security r law enfrcement factrs that wuld render an alien ineligible. DHS shall cmplete the required clearances befre granting an alien blue card status (p.163-164) Applicants fr blue card status (and renewal) shall pay a prcessing fee in an amunt determined by DHS. (p.165-166) The fee shall recver the full csts f prcessing the applicatin. DHS may limit the fee paid by a family and children under 21 and exempt defined classes. Fees shall be depsited int the CIR trust fund. Page 15
Applicants fr blue card status wh are ver 21 shall pay a $100 penalty (p.166) Penalties shall be depsited int the CIR trust fund. Terms and Cnditins f Blue Card Status (Sec. 2211(c)) N alien may remain in blue card status 8 years after regulatins are published (p. 164) DHS may nt extend blue card status until renewed natinal security and law enfrcement clearances have been cmpleted (but what is the riginal length?) (p. 164) Aliens with blue card status shall be wrk authrized (p.169) Aliens with blue card status may travel utside the U.S. and may be admitted, if therwise admissible, upn returning if: The alien is in pssessin f valid blue card status dcuments The alien s absence frm the U.S. did nt exceed 180 days, unless failure t return timely was due t extenuating circumstances beynd the alien s cntrl; and The alien establishes that he is nt inadmissible n natinal security grunds (INA 212(a)(3)). (p. 170) An alien granted blue card status: Shall be cnsidered lawfully admitted t the U.S. and in such status since the date f applicatin; May nt be classified as a nnimmigrant r LPR; (p.170) Eligibility fr Benefits (Sec. 2211(c)(3) and (c)(4), p.172-173) A blue card alien is nt eligible fr any federal means-tested public benefit as defined in 8 U.S.C. 1613 (p.172) A blue card alien shall be cnsidered lawfully present in the U.S. fr all purpses, except the alien: Is nt entitled t Affrdable Care Act tax credits authrized in Sectin 36B f the Tax Cde Shall be subject t the rules applicable t individuals nt lawfully present set frth in subsectin e f such sectin Shall be subject t the rules applicable t thse nt lawfully present set frth in 1402(e) f the Affrdable Care Act (42 U.S.C. 18071(e)); and Shall be subject t the rules applicable t individuals nt lawfully present set frth in 26 U.S.C. 5000A(d)(3) Applicatin Prcess (Sec. 2211(b), p. 153-155) An alien wh meets the basic requirements abve (including spuse and children) may apply fr blue card status. Page 16
DHS shall prvide that aliens are able t apply if: The alien is represented by an attrney, nnprfit, r similar rganizatin recgnized by the BIA r T a QDE if the applicant cnsents t the frwarding f the applicatin t DHS DHS may nly accept applicatins fr a 1-year perid beginning the date n which the final rule is published. DHS may extend the applicatin perid anther 18 mnths. Exceptin: Prvides that aliens wh have participated in the H-2A prgram may apply frm utside f the United States (but is unclear whether H-2As may nly apply during that ne-year perid r may apply indefinitely. The applicatin frm shall cllect such infrmatin as DHS determines necessary and apprpriate DHS may (but is nt required t) interview blue card applicants Prtectin f Illegal Aliens During the Applicatin Prcess (Sec. 2211(b), p.156) Aliens wh have nt applied If an alien is apprehended by any law enfrcement agency between enactment and the end f the applicatin perid and appears prima facie eligible fr blue card status, DHS: Shall give the alien an pprtunity t file an applicatin, and May nt remve the individual until a final administrative determinatin is made n the applicatin Aliens in remval prceedings If DHS determines between enactment and end f the applicatin perid that an alien in remval prceedings is prima facie eligible : DHS shall give the alien an pprtunity t apply, and EOIR shall terminate the remval prceeding withut prejudice and prvide the alien a reasnable pprtunity t apply If EOIR determines that an alien, during the applicatin perid, is in remval prceedings and is prima facie eligible : EOIR shall ntify DHS, and If DHS des nt dispute the determinatin within 7 days, upn cnsent f the alien, EOIR shall: Terminate the remval prceedings withut prejudice Give the alien an pprtunity t apply Aliens rdered remved An alien wh meets the eligibility requirements, is in the U.S., and has been rdered remved (including vluntary departure): May apply fr blue card status Page 17
Shall (upn receiving blue card status) file a mtin t repen the remval rder, which shall be granted unless EOIR/DHS establishes by clear and cnvincing evidence that ne r mre grunds f ineligibility apply. Aliens Wh Have Applied fr Blue Card Status (p.161) Between the time an alien applies and the date n which DHS makes a final decisin, the alien May receive advance parle t re-enter the U.S. if urgent humanitarian circumstances cmpel such travel; May nt be detained r remved fr any reasn unless DHS makes a prima facie determinatin that the alien is r has becme ineligible fr blue card status; Shall nt be cnsidered unlawfully present fr purpses f the 3 and 10 year bars; and Shall nt be cnsidered an unauthrized alien fr purpses f illegal emplyment. After applicatin, as sn as practicable, DHS shall prvide each applicant with a dcument (shield) evidencing the filing f an applicatin. Prtectin f Emplyers (Sec. 2211(b)(6)(D)(iii), p.162) An emplyer wh knws an alien emplyee is a blue card applicant (r will apply nce the applicatin perid begins) is nt vilating the law against emplying illegal aliens pending the adjudicatin f the applicatin. Emplyment recrds by an alien r by an alien s emplyer in supprt f an alien s blue card applicatin may nt be used in a civil r criminal prsecutin f that emplyer under the INA r the tax cde fr the prir unlawful emplyment f that alien, regardless f utcme f the applicatin. Emplyers that prvide illegal aliens with cpies f emplyment recrds r ther evidence f emplyment pursuant t an applicatin fr blue card status shall nt be subject t civil and criminal liability fr emplying such illegal wrkers. Adjudicatin f Blue Card Applicatins (Sec. 2211(b)(10), p. 166-168) DHS shall deny an applicatin by an alien wh fails t submit Requested initial evidence, including bimetric data, and Any requested additinal evidence by the date required by DHS An alien whse applicatin is denied fr insufficient infrmatin may file an amended applicatin if The applicatin is filed within the applicatin perid; and Cntains all the required infrmatin and fees missing frm the initial applicatin Page 18
DHS shall issue dcumentary evidence f blue card status t each alien whse applicatin is apprved. Such dcumentatin: Shall be machine-readable, tamper-resistant, and cntain a digitized phtgraph Shall, during the alien s authrized perid f admissin, serve as a valid travel and entry dcument fr purpses f admissin May be accepted, while valid, by an emplyer as emplyment authrizatin and identity Shall include ther features as DHS requires. Revcatin f Blue Card Status (Sec. 2211(c)(2), p.170-172) DHS may (but is nt required t) revke blue card status at any time AFTER: (1) prviding apprpriate ntice t the alien, and (2) the exhaustin r waiver f all applicable administrative review prcedures IF the alien: Is n lnger eligible; Knwingly used blue card dcumentatin fr unlawful r fraudulent purpses; r Was absent frm the U.S fr 180 days (in a single perid r in the aggregate during any calendar year). DHS may require the alien t submit additinal evidence r appear fr an interview. If an alien des nt cmply, DHS shall revke blue card status unless the alien demnstrates that such failure was reasnably excusable If DHS revkes an alien s blue card status, any DHS dcumentatin shall be autmatically invalid fr any purpse except departure DHS may adjust the status f an alien wh has been granted blue card status t RPI status if DHS determines that the alien is unable t fulfill the agricultural service requirement (p.173) Recrd f Emplyment (p.174) Each emplyer f a blue card status alien shall annually prvide: A written recrd f emplyment t the alien; and A cpy f such recrd t the Secretary f Agriculture. If DHS finds, after ntice and pprtunity fr a hearing, that an emplyer f a blue card alien knwingly failed t prvide the emplyment recrd required r has prvided a false statement f material fact in such recrd, the emplyer shall be subject t a civil penalty f up t $500. Such penalty shall be depsited int the CIR trust fund. Nt later than 1 year after enactment, DHS shall issue final regulatins t implement the Agricultural Wrker Prgram Adjustment t LPR Status (Sec. 2212, p.175) Page 19
Blue card aliens may nly apply fr LPR status (green cards) under this sectin, the prvisins relating t RPI adjustment, r the Merit-Based Track Tw system created in Sectin 2302. Nt earlier than 5 years after enactment, DHS shall adjust the status f a blue card alien t LPR status if: During the 8 year perid beginning with enactment, the alien perfrmed nt less than 100 wrk days f agricultural emplyment during each f 5 years; OR During the 5 year perid beginning with enactment, the alien perfrmed nt less than 150 wrk days f agricultural emplyment during each f 3 years. (p.175-176) The alien applies befre his blue card status expires (p.177) The alien pays a $400 fine, which shall be depsited int the CIR trust fund (p.178) An alien may demnstrate cmpliance with the wrk requirement by submitting: Emplyer-prvided recrds; Dcumentatin under (e)(5)[drafting errr?]; r Any ther dcumentatin DHS designates. (p.176) DHS may credit the alien with up t 12 mnths f agricultural emplyment if the alien was unable t wrk in agriculture due t: Pregnancy, disabling injury, r disease that the alien can establish thrugh medical recrds; (p.176) Illness, disease, r ther special needs f a child that the alien can establish thrugh medical recrds; (p.177) Severe weather cnditins; (p.177) Terminatin frm agricultural emplyment if DHS determines that: The terminatin was withut just cause The alien was unable t find alternative emplyment after a reasnable search. (p.177) A DHS determinatin regarding terminatin f emplyment shall nt be cnclusive, binding r admissible in a separate r subsequent judicial r administrative actin between the alien and emplyer (p.177) DHS may nt adjust a blue card alien t LPR status if the alien: Is n lnger eligible fr blue card status Failed t perfrm the emplyment requirement (p.178) Grunds f inadmissibility under INA 212(a) that were previusly waived r made inapplicable shall nt apply with respect t adjustment t LPR status If DHS ntifies the alien that it intends t revke blue card status, DHS may nt adjust t LPR status (p.178-179) Page 20
A blue card alien may nt file fr adjustment t LPR status unless the applicant has satisfied all federal incme taxes assessed in accrdance with 26 U.S.C. 6203. An alien may demnstrate cmpliance by submitting such dcumentatin as DHS may require by regulatin. (p.179) DHS shall grant LPR status t the spuse r child f a blue card alien wh has adjusted t LPR status if: The spuse r child applies fr such status; The principal alien includes the spuse and children in an applicatin fr adjustment t LPR status; and The spuse r child is nt ineligible fr such status under the RPI prvisins. (p.180) Numerical caps fr green cards shall nt apply t blue card aliens receiving LPR status DHS may interview blue card aliens applying fr LPR status Blue card aliens applying fr LPR status shall pay a prcessing fee that recvers the full cst f adjudicating applicatins (p.181) DHS may limit fees paid by families and aliens under 21, and may exempt individuals and defined classes Fees shall be depsited int the CIR trust fund (p.181-182) Demnstrating Wrk Histry (Sec. 2212(e)(4), p.182) Aliens applying fr blue card status r subsequently fr LPR status shall prvide evidence demnstrating the required wrk histry (p.182) If an emplyer f a blue card alien has kept prper recrds regarding emplyment, the alien s burden f prf may be met by securing timely prductin f such recrds An alien may meet the burden f prf t establish wrk histry by prviding sufficient evidence t shw the extent f that emplyment as a matter f just and reasnable inference (p.183) Adjudicatin f Applicatins (Sec. 2212(f) and (g), p.183-184) Any persn wh files a blue card applicatin r subsequently LPR status and knwingly and willfully makes false r fraudulent statements r supplies a false dcuments shall be fined in accrdance with Title 18 (criminal cde) and imprisned up t 5 years (p.185) An alien wh is cnvicted f such crime shall be deemed inadmissible under INA 212(a)(6)(C)(i) Sectin 504(a)(11) f the Cmmerce, Justice, State, Judiciary and Related Agencies Apprpriatins Act f 1996 (PL 104-134) may nt be cnstrued t prevent Legal Services frm prviding assistance directly related t blue card applicatins r applicatins fr LPR status. Page 21
Aliens applying fr blue cards r LPR status shall be entitled t administrative and judicial review under the prvisins fr RPI aliens Amnesty fr Scial Security Fraud (Sec. 2221, p.185-186) Amends Title 42 t exempt aliens with blue card status frm mst scial security-related crimes. Prvides that aliens with blue card status shall NOT be subject t prsecutin fr: Willfully and knwingly submitting false infrmatin, with intent t cnceal his identity r the identity f anther, t the Scial Security Administratin fr the purpse f establishing and keeping recrds; Fr the purpse f increasing payments, causing payments when nne are authrized, r btaining a payment t which the individual is nt entitled, r receiving anything f value: Uses a SSN btained n the basis f false infrmatin; Falsely represents that a SSN is lawfully his Knwingly alters a scial security card r buys/sells scial security cards Page 22