By Attorneys Robert L. Reeves and Jeremiah Johnson
Turn on the news today and you will likely hear someone talking about immigration. Whether it is tighter security along our border or creation of a guest worker program, Congress, and our society in general, is debating immigration reform. Just a few months ago the House passed HR 4437, The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, a bill focused almost exclusively on enforcement and security concerns. However, the Senate is now engaged in immigration reform and the current proposal being considered is known as Senator Specter’s Chairman Mark-up of the “Comprehensive Immigration Reform Act of 2006.” These proposals have been met with mixed responses: some suggest the provisions are too generous; others decry the harsh effects. Below are some key provisions of the Chairman’s Mark-up.
The Gold Card: Amnesty or Bust?
Perhaps one of the proposals most talked about provisions is the “gold card.” While there is a provision that would permit certain undocumented aliens to remain in the United States, this “gold card” should not be compared with the amnesty legislation in the past, such as “245(i).” The provision does provide a means for immigrants who where physically present and working in the United States unlawfully as of January 2004 to apply for a conditional temporary visa. This visa would allow the alien to work legally and travel oversees. Although membership does have its advantages (i.e. having family members join the applicant, indefinite work authorization) however the applicant would waive certain rights in order to apply such as his right for review if his application were denied and his right to contest future deportation.
The New Temporary Guest Worker
(aka the old permanent undocumented worker)
Another major proposal found in the Chairman’s Mark-up is the creation of a new temporary worker program, known as an H-2C visa. This visa would be valid for three years and could be renewed only one time for a total of six years. After that, the temporary guest worker would be required to return to their home country for at least one year before returning on another H2-C visa. Although the current proposal would increase the number of visas available to this new worker category, there remains a strong possibility for a long wait before a temporary guest worker could adjust his status to lawful permanent resident.
More Visas, Less Justice
Beside the creation of a new H2-C visa, the Chairman’s Mark-up raises the number of family based visas available by exempting immediate relatives of United States citizens from counting against a worldwide cap of 480,000 (an increase from the current 226,000 visas). Furthermore, employment based green cards would also be increased to 290,000 from the current 140,000 available. Although these increases are certainly “steps” in the right direction, there would need to be a much greater “leap” in numbers to meet the current demand.
While some of the proposals found in the Chairman’s Mark-up are seen as a much needed and welcomed proposal by many; the proposal contains some troubling provisions. For instance, the Act would completely overhaul the current system for judicial review, establishing automatic denials of a petition for review unless a single judge issues a “certificate of reviewablity.”
Illegal alien = criminal alien
Perhaps the most troubling aspect of the proposal, is the criminalization of immigration offenses. For instance, the current proposal broadens the definition of alien smuggling to include acts relating to transporting, housing, and employment of undocumented persons. The proposal also expands the definition of an aggravated felony to include immigration document related offenses, such as use of false passport. Given the harsh consequences resulting in an aggravated felony conviction, this proposal will preclude many people convicted of relatively minor criminal offenses from any form of relief from removal.
This article is to help you begin to understand the current debate surround immigration reform and the possible proposals and their effects. This short article is just an overview of the current proposals (the Chairman’s Mark-up is over 300 pages!). Change in our federal immigration laws are likely, but what will not change is the importance of finding an attorney who you trust to help you and your family navigate these changing waters and ensure your “gold card” does not turn out to be fool’s gold.