The Immigration Reform Down Payment

By Attorneys Robert L. Reeves & Joseph I. Elias

Immigration reform is a contentious political issue that has recently received significant publicity and attention.  Anti-immigration fervor lead to the passage of Arizona’s notorious anti-immigrant measure and the more recent law in Fremont, Nebraska outlawing property rental to undocumented immigrants.   There is even a current movement in Arizona to strip children born in the US of US citizenship if the parents cannot prove their lawful immigration status.  On the other hand, the press is also covering compelling reasons to pass immigration reform that provides a mechanism for undocumented immigrants to become lawful residents of the US.   One of the more prominent ones is the story of Eric Balderas, a 19-year-old Harvard biology student, now facing deportation to Mexico.  Eric’s parents brought him into the US without proper immigration documentation when he was a child. 

This immigration turmoil is a clear sign members of Congress must resolve their differences and reform the current immigration system.  The Obama administration, in public statements issued by the President, and by Secretary of State, Hillary Clinton to foreign leaders, has repeatedly stated that immigration reform must be addressed.  Senator John Kyl of Arizona recently told a Tea Party gathering that President Obama told him, “The problem is, he said, ‘If we secure the border, then you all won’t have any reason to support comprehensive immigration reform.’"

In response, the White House stated the President, "believes that our broken immigration system can only be fixed by putting politics aside and offering a complete solution that secures our border, enforces our laws, and reaffirms our heritage as a nation of immigrants."

The questions that keep being asked against this backdrop are, are we going to get immigration reform, and if so when and what will the legislation look like?  Many political pundits, Congressional representatives and administration officials do not believe a comprehensive immigration bill can be successfully passed this year.  But, many feel that there is a strong chance that 2 smaller immigration provisions may pass before year-end.  This is being referred to as a down payment on comprehensive immigration reform. 

The first bill is significantly poignant and will benefit someone like Eric Balderas.  This is called the Development, Relief, and Education Act for Alien Minors Act, or the DREAM Act.  In its current form, the DREAM Act will allow undocumented immigrants who have been living in the US for at least 5 years, and were brought into the US before they reached 16, to obtain Conditional Resident Status (a temporary green card).  The DREAM Act requires the applicant to have been admitted to a college or university, or earned a high school diploma or GED.  The conditions to status can be removed after six years and a showing that the immigrant has not departed the US for more than one year and has either acquired a degree from an institute of higher education, or completed two years in good standing for a bachelor’s degree or higher in the US, or has served in the uniformed services for least two years.  The conditional resident status would carry all the benefits of permanent residency which include the right to live, work and study in the US.   DREAM Act conditional residents would also be eligible to apply for certain Federal student loans and Federal work-study programs.  Finally, DREAM Act applicants would be eligible to apply for US citizenship after their conditions were removed.   There are, however, no provisions in the DREAM act to provide the spouse or parents of DREAM ACT conditional residents any status.  This would require the applicant to become a US citizen in order to petition parents, or at a minimum, a permanent resident to petition a spouse.

The second bill in consideration as part of the immigration reform down payment is the Agricultural Job Opportunity, Benefits, and Security (AgJobs) Act.  Under AgJobs, undocumented agricultural workers could apply for temporary resident status based on their past work experience, and then to become permanent residents upon satisfying prospective work requirements.  The applicant would be required to prove that he or she performed agricultural worked in the US for a prescribed number of hours or days during any 12 consecutive months in the 18-month period ending on the qualifying date set by Congress.  The application period would begin on the first day of the seventh month after enactment and would run for 18 months.  Eligible applicants would be granted temporary resident status while they work towards the permanent residence requirements.

After obtaining temporary resident status, workers could be employed in non-agricultural occupations, as long as they meet their agricultural work requirements.  While in temporary resident status, workers may select their employers and switch employers.
If the worker performs at least 2060 hours or 360 work days (whichever is less) of agricultural employment during the six-year period ending on the cut off date set by Congress, including at least 240 work days during the first three years following adjustment to temporary status, and at least 75 days of agricultural work during each of three 12-month periods in the six years following adjustment to temporary resident status, the worker may apply for permanent resident status.  Eligible individuals must apply for adjustment to permanent resident status by a date to be set by Congress.
Both acts promise to provide much needed relief and certainty to immigrants who have proven themselves to be a benefit to US society.  The immigration bickering cannot continue unaddressed and we hope that the differing sides in Congress and the President can find the strength and resolve to provide hope, stability and security to our immigration law and policy.