On Mar 17 2021

New Paths to Citizenship and Green Cards in Biden’s proposed Immigration Bill

By Grace Waweru

Last month, President Joe Biden introduced an immigration reform bill to Congress named the U.S. Citizenship Act of 2021 that, if passed, will make major changes to the U.S. immigration system as it currently stands. The bill has several bold changes aimed at “restoring humanity and American values” with provisions that impact almost every group of immigrants in the United States. The most major changes proposed include providing a new path to citizenship for millions of undocumented immigrants as well as removing several roadblocks for employment-based immigrants in obtaining visas and permanent residency.

Arguably, the boldest provision, and the centerpiece to the legislation, is the new path to citizenship for the estimated 11 million undocumented immigrants currently living in the United States. Undocumented immigrants, DACA recipients, individuals in temporary protected status (TPS), and others would be able to receive temporary legal protected status if they pass criminal and national security background checks and pay their taxes. This status would allow them to apply for and receive a Social Security number, employment authorization documents and even travel documents. After eight years, they would be eligible to apply for citizenship, allowing them to also petition for family members.

Though several parts of this bill are unlikely to make it into the final version, this path to citizenship would bring several forms of relief to many undocumented law-abiding immigrants. One way is the ability to get a driver’s license and being able to drive safely to work, a privilege that is only attainable in a small number of states currently. The bill’s limitations for only undocumented immigrants without felony convictions or less than three misdemeanors might help in achieving more bipartisan support.

The bill also aims at addressing the root causes of some of the current issues specifically with migration from Central American countries. Biden’s bill proposes a four-year plan of assistance to El Salvador, Guatemala, and Honduras to reduce the endemic corruption, violence, and poverty driving migrants north. Another provision establishes designated processing centers to register and process displaced persons for refugee resettlement and other lawful migration avenues either to the United States or other partner countries.

For employment-based immigration, the proposed reforms are almost equally bold. Students in F-1 status with science, technology, engineering and math (STEM) degrees would be allowed to directly apply for permanent residency upon graduation without having to take their chances in the H-1B visa lottery or apply for an L-1 visa, the two employment-based visa categories that can lead to permanent residence. F-1 students would also be allowed to apply for extensions of their employment authorization documents in one-year increments if certain conditions are met. Those conditions would be if their labor certification applications were submitted one year before the expiration of their F-1 and are still pending or if they have a pending I-140 immigrant petition. This would help address the green card quota backlog for students from countries like India and China, who may otherwise take their American education and highly needed STEM skills back to their home countries. F-1 students with doctorate degrees would not only be eligible to immediately apply for permanent residency but would also not be subject to immigrant visa caps once they apply. This relief would be welcomed ten-fold by thousands of students in F-1 status it would allow them to remain in the United States after graduating and bring their skills to U.S. employers without waiting years or decades for their green cards.

The bill also aims to eliminate roadblocks to obtaining permanent residency by employment-based immigrant visa holders by allowing anyone who has been waiting to apply for a green card for more than 10 years due to their country’s quota backlog to be immediately eligible to able to apply. This would be a welcome change for many, especially Indian nationals who have the longest wait times. Also, employment-based green cards from fiscal years 1992 to 2020, unused due to processing delays, would be recaptured and added to the number of employment-based green cards available.

In addressing the unprecedently large backlog for employment-based immigrant visas, the bill also proposes to eliminate the current per-country caps that have resulted in some immigrants waiting decades for a green card, like Indian nationals. The legislation also would increase total employment-based immigrant visas from 140,000 to 170,000 per year, and would further stop counting spouses and minor children against that cap while still allowing them to obtain a green card along with their employment-based immigrant spouse or parent.

Specifically for H-1B visa holders, the bill aims to keep families intact by allowing children dependents to obtain work authorization. This would protect H-1B holders’ children from “aging out” if the child accompanies them and acquires their nonimmigrant status before turning 18 years old. Under the current system, children of H-1B workers can lose eligibility for permanent residency at 21 years old if their H-1B parent is unable to acquire a green card in time due to backlogs, leaving them to have to leave the country or acquire a different immigration status.

Increasing demand for highly skilled technical workers by U.S. employers as well as lengthy and costly roadblocks to their immigrant employees’ ability to work and live legally and together with their family seems to be the driving force behind Biden’s proposed changes to employment-based immigration. As a protection for American workers and to create a more flexible system, the bill gives authority to the Department of Homeland Security and the Department of Labor to temporarily decrease the number of employment-based immigrant visas when the United States is facing high rates of unemployment in a particular area or occupation sector.

In this entire proposed legislation, it is clear that Biden aims to consider almost all groups of immigrants and address the root causes of some of the issues currently ongoing in the immigration system. However, it is doubtful that the final version of the bill will contain most of these bold relief provisions. The final version will likely look very different from the current bill on the congressional table. Nevertheless, the bill sets the terms of the debate and is an important step toward bringing some much-needed changes to the current immigration system.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the March 17, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.