The Future of Immigration: Current Reforms and Prospective Relief (Part Two)

By Attorneys Robert L. Reeves and Eric R. Welsh 

 Immigration reform is on the horizon.  The topic of immigration, never far from the national consciousness, has taken center stage in recent months.  It is undeniable that the politics of immigration played a significant role in the presidential and congressional races of 2012, and growing immigrant demographics throughout the United States suggest that immigration will remain a central issue in American politics for the foreseeable future.  Lawmakers are well aware that in order to remain globally competitive, and in order to maintain fidelity to the humanitarian principles upon which this country was founded, the United States must overhaul and expand its immigration system.  

 Congress has yet to present any concrete proposal for debate and vote, but President Obama and leading members of the House and Senate have provided a basic framework for comprehensive reform.  President Obama has urged that any reform must include a pathway to “earned citizenship,” as well as new measures to prevent unauthorized employment of undocumented workers, and increased border security.  In the Senate, support for immigration reform has come from a group known as the “Gang of 8,” a bipartisan collective of four Republicans (including John McCain, Lindsey Graham, and Marco Rubio) and four Democrats (including Charles Schumer and Dick Durbin).  The “Gang of 8” has largely supported President Obama’s framework, but there will likely be substantial compromises and amendments once Congress gets down to the dirty business of bill-making.  

 On February 18, 2013, the Miami Herald posted a version of a comprehensive immigration bill drafted by the White House (this draft was apparently leaked to the Miami Herald by unknown sources).  In this draft bill, the White House addressed enforcement (including proposals for border security and penalties against employers) and increased penalties for unlawful employment, while also offering amendments to many parts of the current laws that concern criminal bars and eligibility for relief.  For example, the proposed bill would narrow the definition of “conviction” for immigration purposes to exclude dismissals, expungements, and suspended sentences.  The proposed bill would also expand eligibility criteria for relief such as cancellation of removal, and relax the hardship standard for cancellation. 

Regarding legalization, the White House bill proposes the creation of a status known as Lawful Prospective Immigrant (LPI).  Persons with convictions for aggravated felonies and certain other criminal offenders would not be eligible for LPI status.   Persons who have been granted status under the program for Deferred Action for Childhood Arrivals (“DACA”) will have a mechanism for “pre-approval” for LPI status.  LPI status would be granted on a four-year basis, and could be extended. 

A person who is granted LPI status under the White House proposal would not be considered “out of status,” and would not accrue unlawful presence.  A person granted LPI status would not be subject to detention or removal, unless Homeland Security determines that the person is no longer LPI-eligible, or had their status revoked.  LPI status would provide lawful work authorization and permission to travel.

After a wait time of 6 or 8 years after the grant of LPI status, a person in LPI status would be able to adjust status to that of a permanent resident, providing the person demonstrates knowledge of English and U.S. history and government, has paid all taxes, and has been continuously present in the U.S. during that period.  DACA applicants would not need to wait 6 or 8 years to adjust status. 

The White House proposal is not a final draft, and although the Gang of 8 has supported the proposal in principle, the specific details are subject to considerable change through congressional committees and debate.  As President Obama noted in his January 2013 speech on the subject of immigration reform, this issue will be divisive, and the debates will likely be protracted and emotional.  President Obama is urging Congress to act within the next 60 days, but it could still be several months before Congress passes a final bill for the Mr. Obama’s signature. 

Advocates for immigration reform agree that the current political climate is ripe for change, but acknowledge that the window of opportunity for reform is narrow and can close at any time.  Many believe that Congress will take action soon. 

Any person who believes he or she may benefit from comprehensive reform should discuss their case with a knowledgeable and experienced immigration attorney.