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U.S. Citizenship Act of 2021
Here we go again. On January 20, 2021, President Biden sent the U.S. Citizenship Act of 2021 to Congress. On February 18, 2021, Representative Sánchez (D-CA) introduced the U.S. Citizenship Act of 2021 in the House. On the same day, Senator Menendez (D-NJ) introduced an identical bill in the Senate.
From a macro level, the bill includes changes that will strengthen and improve our legal immigration system, reunify families who have been separated by years long visa backlogs, and provide a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America.
Let me focus on the one area which, in the Trump administration, caused so much consternation among the far right-wing of the Republican Party that it caused “the wall” to become one of the central pillars of Trump’s immigration policy.
President Biden’s immigration bill creates an earned roadmap to citizenship for undocumented individuals. Specifically, the bill allows individuals in the United States without status to apply for temporary legal status, with the ability to apply for green cards after five years, if they pass criminal and national security background checks and they pay their taxes. In addition, “Dreamers,” those in temporary protected status, and immigrant farm-workers who meet specific requirements are, under the legislation, eligible for green cards immediately. Furthermore, after three years, all those green card holders who pass additional background checks and also demonstrate knowledge of English and U.S. civics can apply to become U.S. citizens.
There are other requirements too, including a requirement that applicants must have been physically present in the United States on or before January 1, 2021 (although the Secretary of the Department of Homeland Security (“DHS”) can waive the physical presence requirement for those who were removed on or after January 20, 2017 (i.e., Trump’s inauguration day) if they were physically present for at least three years prior to their removal, in the interest of family unity and other humanitarian purposes). Finally, President Biden’s bill address some Progressive’s concerns by changing the word “alien”to “noncitizen” throughout our immigration laws and regulations.
As constructed, the Immigration and Nationality Act (“INA”) has three primary approaches to addressing unauthorized individuals in the United States: removal / deportation, deterrence (e.g., imposing criminal sanctions on employers who hire unauthorized or undocumented workers, etc.), and to a far lesser degree, legalization (which exists today in the form of, e.g., asylum and other humanitarian provisions of the INA, but not nearly at the level that’s needed to address all the individuals in the United States who are here without status).
This notion of a pathway to permanent residence (or possibly even U.S. citizenship) has been problematic for many or even most Republicans for as long as I can remember. I feel like I’ve written about it seemingly forever. The original “Dream Act” dates back to 2001. That year, the Development, Relief, and Education for Alien Minors Act (the original “DREAM” Act) was introduced in the 107th Congress. It provided a pathway to lawful permanent resident (i.e., “Green Card” or “LPR”) status for eligible individuals. In most cases, Green Card holders must first have resided in the United States for five years before they could naturalize. However, instead of the focus singularly being on the 11 to 13 million unauthorized individuals in the United States, and the diametrically opposite policy choices of somehow either removing all of them or “regularizing” them in the United States, the focus shifted to a subset of that overall population.[1]
That is, the original bill in 2001 provided immigration relief to what was referred to as “unauthorized childhood arrivals” who, like the larger unauthorized population, were typically also unable to work legally and were also subject to removal from the United States. But many policymakers, and indeed the majority of the general population today, viewed and continue to view this portion of the unauthorized population more sympathetically than unauthorized immigrants on the whole because unauthorized childhood arrivals had arrived in the United States as children, generally through no fault of their own, and consequently, they were not seen as being responsible for their unlawful status.
Whether we continue to focus on the overall unauthorized population, or the subset of that population now commonly known as the Dreamers, the reality is the problem of any or all of them being here is not going to go away until we as a nation take steps to resolve the issues of why they came here in the first place and, now that they’re here, what we do with (and for) them.
From an economic standpoint, President Biden has history on his side that some sort of legalization program would be a boon for the U.S. economy; that is, the notion of legalizing unauthorized individuals is not only a humanitarian gesture, but it will also create an economic benefit to the United States. Studies show that individuals who are in the United States lawfully earn more than those who are unauthorized.[2] What’s more is that these extra earnings generate more tax revenue for federal, state, and local governments; they also result in more consumer spending which sustains more jobs in U.S. businesses.[3] There’s no shortage of substantive economic (and legal) arguments why President Biden should not fight, and fight hard, to get his legislation passed.
The U.S. Citizenship Act of 2021 is President Biden’s first, and may end up being his best (and only), effort to address these incredibly important issues. I hope that Americans, all of us, can get our acts together and support this sensible and reasonable solution to a problem that has vexed our policymakers for generations. The U.S. Citizenship Act of 2021 is legislation that builds upon the contributions of immigrants in and to the United States, reunites families, strengthens our economy, expands humanitarian protection programs, and importantly, provides legal status and ultimately citizenship for the 11 to 13 million unauthorized individuals, young and old, who currently live in the shadows. Let’s create some sunlight for them.
[1] There’s probably two subsets that have received attention, the second one being agricultural workers. I’ll save that discussion for a separate article.
[2] See, e.g., https://ideas.repec.org/a/ucp/jlabec/v20y2002i3p598-628.html; see also http://immigrationpolicy.org/sites/default/files/docs/Economic_Progress_via_Legalization_-_Paral_110509.pdf.
[3] Id.
More Bold Promises for Immigration Reform from President Biden
Haven’t we been down this road before? Many times now? Will we be reading about Comprehensive Immigration Reform 2.0, 3.2, or Version 7? I don’t know how to characterize it anymore. Or are we instead heading into a period of Executive Orders to effectuate change because, despite the Democrats being in control of Congress, there’s no desire (seemingly) by Republicans to work with their Democratic counterparts across the aisle for meaningful, and yes, comprehensive immigration reform? Time will tell.
Suffice it is to say, we should all keep an eye on the news during the first 100 days of the Biden Administration to see what unfolds. The President’s campaign promises were bold. Candidates’ election promises almost always are. And then, with victory in hand, the cold reality of actually governing sets in.
I personally sat in front of my television and watched President Biden’s inauguration speech in real time. It gave me hope, not only after having watched the events unfold at the Capitol building two weeks earlier, but after four long years of dealing with Donald Trump and his evil minion Stephen Miller, the tone was actually postive. At long last, someone else would be occupying the White House, and the Democrats controlled Congress, slim as their margin in both houses may be.
So, with that, President Biden, on January 20, 2021, sent the U.S. Citizenship Act of 2021 to Congress. Highlights of the proposed legislation include changes to strengthen and improve our legal immigration system, reunifying families who have been separated by years long visa backlogs, and providing a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America. There’s so much more in the bill.
The bill is strikingly similar in so many respects to a predecessor bill introduced years ago by a bipartisan group of Senators, known then as the Gang of 8,[1] during the second term of the Obama Administration. No surprise in the current environment, the only two remaining Republican Senators from that group are no longer interested in supporting President Biden’s proposal. Go figure.
So, as Senator Bob Menendez (D-NJ) and Representative Linda Sánchez (D-CA) lead the introduction of the U.S. Citizenship Act in their respective congressional chambers, President Biden is busy at work, signing Executive Orders which, in the immediate term, will reverse President Trump’s executive order excluding undocumented immigrants from the reapportionment count, preserve and fortify protections for Dreamers, reverse the Muslim Ban, repeal President Trump’s interior enforcement Executive Order, and stop construction on the border wall, among other actions.
Governing by Executive Order is of course not the preferred means, but as I wrote some time ago, according to the American Immigration Council, between 1956 and 2014, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together. So, here we go again.
President Biden has repeatedly voiced his commitment to ending the Trump administration’s inhumane and unfair immigration policies and, in doing so, laying out his own bold and expansive agenda that will ensure our immigration system reflects our values and undergoes the reform that we all agree is desperately needs. Day 1 of the Biden Administration has now come and gone. He has at least honored his promise to get the ball rolling by introducing the U.S. Citizenship Act of 2021 to Congress, and by signing a myriad of Executive Orders to lessen the toll of the Trump Administration’s terrible immigration policies. Let’s see where it goes from here.
[1] The Gang of 8, as they were known in 2013, included Senators Chuck Schumer, Dick Durbin, Lindsey Graham, Bob Menendez, Marco Rubio, and Michael Bennet. Also included in that group were the late Senator John McCain, and former Senator Jeff Flake.
Immigration and Covid-19: Take 3
So between COVID-19 (2.0) and COVID-19 (3.0), President Trump signed a proclamation (not an executive order as many have reported) temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. What exactly does this mean? Practically, not much. Most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did he do it? Politics as usual.
First, some details. The President’s proclamation suspends the entry of any individual seeking to enter the United States as an “immigrant” who (a) is outside the United States on the effective date of the proclamation (the proclamation went into effect at 11:59 pm (ET) on April 23, 2020), (b) does not have a valid immigrant visa as of April 23, 2020, and (c) does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter. The proclamation is in effect for sixty days.
The following individuals are exempt from the President’s proclamation: (a) lawful permanent residents (i.e., Green Card holders); (b) individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional, to perform medical research or other work essential to combatting COVID-19, as determined by the Department of Homeland Security (“DHS”) and the Department of State (“DOS”); (c) individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program; (d) spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on certain types of visas; (e) individuals who would further important U.S. law enforcement objectives (again, as determined by DHS and DOS); (e) members of the U.S. Armed Forces and their spouses and children; (f) Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa; and (g) individuals whose entry would be in the national interest (also as determined by DHS and DOS).
But here’s the thing. As I alluded to at the outset, most routine visa services at U.S. embassies and consulates across the world have been suspended since March 20, 2020. (1) U.S. Citizenship and Immigration Services (“USCIS”) has, until at least June 4, 2020, suspended in-person services (although it does continue to accept and process applications and petitions, which are processed at its “service centers”, which are not accessible to the general public). The U.S. borders with Canada and Mexico are closed for non-essential travel until, at this point, at least May 20, 2020. And, with few exceptions, the entry of individuals who were in countries such as China, Iran, the United Kingdom, and Ireland, during the 14-day period immediately before their desired date of entry into the United States, has also been suspended. (2)
Interestingly, though for purposes here, individuals who hold nonimmigrant visas (i.e., temporary visas like tourist visas or some work visas) are not prohibited from coming to the United States under the Proclamation. Why not? The President’s proclamation requires a review of temporary visa programs within thirty days and seeks recommendations to stimulate the U.S. economy to ensure “the prioritization, hiring and employment” of U.S. workers. And there you have it. “It’s the economy stupid!”
In the face of all the criticism about how he personally has handled (or mishandled) the COVID-19 pandemic, I am surprised it took so long before he resorted to distraction, blame, and fearmongering. Instead of focusing on the public health crisis that we’re all dealing with on a daily basis, the President has cloaked the proclamation as a means to “put unemployed Americans first” amid the massive job losses that all workers (both U.S. and foreign born) are experiencing as a result of COVID-19. It’s nothing more than a political ploy. It’s fodder for his political base.
I have written about, and substantiated, on a number of occasions, that immigrants create jobs, are innovators and entrepreneurs, and meet important U.S. workforce needs. A study written by Madeline Zavodny, an economics professor at the University of North Florida, for the National Foundation for American Policy, concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate.” (3)
When the proclamation was announced, and even days before with the lead-up, I was getting panicked calls from current and potential clients about what impact the President’s proclamation would have on their cases or situation. This is nothing more than a distraction to what I personally believe is the real issue. The President’s concern over the election.
I am not at all suggesting that our government should not be doing something to control the entry of any individual into the United States who may have been, during the 14-day period immediately before their desired date of entry into the United States, in an area that is severely impacted by COVID-19. Not at all. But the President’s policy of limiting immigrants from entry into the United States has no rational basis. He’s not saving American jobs; he’s also not making us any safer or more secure. To restore our country’s health, physically, mentally and economically, we need to keep our focus on moving forward together. We are stronger together.
The United States is facing a public health crisis, and a resulting economic crisis, unlike any that we have ever faced in our lifetimes. We need a better and more organized public health response. This will get our society back on track and our people back to work. Everything else, especially the President’s proclamation, is a distraction from this priority.
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(1) U.S. embassies and consulates continue to provide urgent and emergency visa services as their resources allow. And, the DOS, at this point, continues to process visa applications for farm workers and medical professionals assisting with COVID-19.
(2) Importantly, asylum seekers are not prohibited from coming to the United States.
(3)Madeline Zavodny, “Immigration, Unemployment and Labor Force Participation in the United States,” National Foundation For American Policy, NFAP Policy Brief , May 2018.
“Should I become a U.S. Citizen?” The Case for Naturalization and Trump’s Executive Order
Not everyone who is a permanent resident becomes a U.S. citizen (i.e., naturalizes), nor is there any legal requirement that one must naturalize. However, permanent residents who naturalize gain important benefits, not the least of which (these days) is security from deportation (in most cases) and the ability to travel with a U.S. passport.
Under the law, to qualify for U.S. citizenship, permanent residents must (a) be at least 18 years of age, (b) reside continuously in the United States for five years (or three years if they are spouses of U.S. citizens), (c) be of good moral character, (d) demonstrate the ability to read, write, speak, and understand English (unless they are exempt from this requirement), (e) pass an examination on U.S. government and history (unless they are exempt from this requirement), and (f) be willing and able to take the naturalization Oath of Allegiance.
Seems simple, right? Sometimes it is. Other times, however, issues arise as to whether someone is a person of good moral character (because of something he or she might have done in his or her past), continuous residency in the United States, to name just a couple.
Is it worth it? I don’t often counsel clients to become a U.S. citizen. I think that’s a very personal decision, and there are many factors that go into that decision. However, these days, I personally think there’s much more at stake for permanent residents, whether they’re from one of the seven predominantly Muslim countries designated in President’s Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” or otherwise.
Few people expect to be arrested for a crime. But the risks for permanent residents who are arrested for a crime, even a seemingly minor one (like a misdemeanor under state law) are much, much higher. Permanent residence can be revoked and the individual can be deported. While there are many benefits associated with being a permanent resident, “permanent” does not necessarily mean “permanent.”
And if not for you, what about your children? We all know that kids make mistakes, and many times they’re really stupid ones. Immigrant kids are especially at risk if they make stupid mistakes. For example, with few exceptions, most convictions related to the use of illegal drugs can result in deportation of a permanent resident. So can a conviction related associated with sexual conduct by a young adult with a person who is a minor. Indeed, many immigrants who have lived in the United States with their families as permanent residents since they were very young children have been deported after being convicted of crimes they committed as youth or young adults. Becoming a U.S. citizen can protect you and your children from deportation.
We are living in an unprecedented moment in history, and it feels like the rules of engagement in the world of immigration are changing by the day. I would not normally counsel clients (or anyone for that matter) to become a U.S. citizen. However, in these uncertain times, I think it’s very much worth looking into.
Tags: President Trump, Executive Order, Refugees, Muslims, Deportation, Removal, Citizenship, Naturalization.
Trump’s Executive Actions – Travel Advisory
To say that this past weekend’s events were extraordinary would be an understatement. Here’s a recap and the very latest on President Trump’s Executive Order (“EO”) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In sum, the EO does six (6) primary things:
1. Suspension of U.S. Refugee Admissions Program. The EO suspends the U.S. Refugee Admissions Program for 120 days.
2. Ban on Syrian Refugees. The EO halts the processing and admission of Syrian refugees indefinitely until President Trump determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.
3. Ban on Entry of Nationals of Muslim-Majority Countries. The EO bans immigrant and nonimmigrant entries, for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added as well.
4. Requires In-Person Interviews for Most Nonimmigrant Visa Applicants. The EO suspends the Visa Interview Waiver Program, essentially requiring all nonimmigrant visa applicants to attend an interview unless an interview is statutorily exempt.
5. Screening of all Immigration Benefits. The EO directs federal agencies to develop screening standards and procedures for all immigration benefits to better identify fraud and detect whether a person intends to do harm in the United States.
6. Biometric-Entry Exit. The EO directs agencies to expedite the completion and implementation of a biometric (e.g., fingerprinting) entry-exit system that includes reporting requirements.
The EO was effective immediately. Chaos ensued as foreign nationals were detained at airports around the world, pulled off planes set to depart to the United States, or otherwise had their visas cancelled. Advocacy groups sued, and people all over the United States rallied in opposition to this EO. (As you will recall, there were two other EO’s issued by President Trump earlier last week.)
On Saturday, a federal judge in the Eastern District of New York issued an order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. Later, a federal court in Massachusetts issued a decision which barred federal officials from detaining or removing individuals subject to the EO.
There are so many questions and concerns that my colleagues and I have about this EO (and the others too), and of course there’s little to no clarity coming out of the White House. (Indeed, there’s contradicting information coming out of the White House and the Department of Homeland Security on some issues, including whether the EO applies to lawful permanent residents, i.e., Green Card holders).
So, where does that leave us? It’s way too early to tell as the situation is very fluid. However, I am advising my clients who might be affected by the EO (and frankly many others as well as there is not a lot of clarity on important issues, e.g., how this effects dual nationals where one nationality is of a Muslim-majority country) to refrain from traveling outside of the United States. Plain and simple, if you don’t have an urgent or compelling reason to travel outside the United States, then don’t.
Immigration Reform by Executive Action: What Did Obama Actually Do?
So, the President finally did it. On November 20, 2014, President Obama announced a series of actions (not executive orders as it turns out) that his administration is taking to “fix” what he has repeatedly described as a “broken immigration system.” These actions involve, among other areas, border security, providing a temporary status (commonly called “deferred action”) for some aliens who are currently unlawfully present in the United States, and future legal immigration. So what did the President actually do? I’m glad you asked.
Border Security. Likely to placate those on the right, and certainly consistent with this Administration’s record level of deportations, the President announced he is implementing a “Southern Border and Approaches Campaign Strategy” which the Administration argues will “fundamentally alter” the way in which it marshals resources to the border. We’re informed that this will involve the U.S. Department of Homeland Security (“DHS”) commissioning of three (3) task forces, consisting of various law enforcement agencies, which will focus on the southern maritime border, the southern land border and West Coast, and investigations to support the other two task forces. The primary objectives of this new strategy is increasing the risk of engaging in or facilitating illegal transnational or cross-border activity, interdicting people who attempt to enter illegally between ports of entry, and preventing the illegal exploitation of legal flows (e.g., alien smuggling at ports of entry).
Aliens Unlawfully Present in the United States. The centerpiece of President Obama’s announcement, and no doubt the most controversial, is to grant deferred action (basically temporary relief from removal) to some aliens who are unlawfully present in the United States (i.e., those who were brought to the United States as children and raised here, or those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”)).
In addition, President Obama expanded a program his administration announced in June 2012, known as Deferred Action for Childhood Arrivals (“DACA”). That program allowed aliens who were unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization. DACA, as originally proposed, expressly excluded aliens who were unlawfully present aliens and who were over 31 years old, or who had entered the United States on or after June 15, 2007. Under President Obama’s recent action, aliens who are over 31 years old, or entered the United States between June 15, 2007, and January 1, 2010, could receive deferred action. The President’s recent initiative would also extend the duration of grants of deferred action (and work authorization) received by DACA beneficiaries from the current two years, to three years.
As noted above, aliens who are unlawfully present in the United States who have children who are U.S. citizens or LPR’s will also be eligible for deferred action (and employment authorization) provided they can show (1) “continuous residence” in the United States since before January 1, 2010, (2) physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they apply for deferred action, (3) not being an enforcement priority under the administration’s newly announced priorities, and (4) they present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate. Individuals who are granted deferred action pursuant to the President’s initiatives, or otherwise, are eligible for employment authorization provided they can show “an economic necessity for employment.”
There were other provisions which addressed aliens who are unlawfully present in the United States too, but these are the big ones.
Legal Immigration. The President also announced certain initiatives intended to affect aliens who are lawfully present in the United States, and which was described by the President as supporting high-skilled business and workers. One such provision is to ensure that all immigrant visas (basically “Green Cards”) which are authorized by Congress in a given fiscal year are actually issued.
Yet another initiative that the President announced is expanding the duration of “optional practical training” (“OPT”) available to F-1 nonimmigrant students in the United States studying science, technology, engineering, and mathematics (“STEM”) fields at institutions of higher education in the United States, as well as expanding the actual degree programs that are eligible for OPT.
Again, there were other provisions which the President announced in this category.
I realize the President’s actions are very controversial, and a lot of people are unhappy with them. As I’ve said before, and I’ll say it again, our immigration system is broken and it desperately needs to be fixed. In a perfect world, Congress would pass meaningful, comprehensive and bipartisan legislation, and send it to the President for his signature. That has not happened for way too long. So I suppose this is the next best thing.
INSIGHT INTO IMMIGRATION 