| Legislative Update, September 2002
By Diana L. Levy, Esq.
The immigration laws change so frequently that it is hard
for the average immigrant to keep up. Since September 11,
2001, alone, there have been several new laws passed that
directly affect the fate of non-citizens in this country.
There are also some bills pending before Congress that are
of special interest to the immigrant community. I will discuss
some of the new laws and pending legislation and attempt to
explain their effects on non-citizens in this country.
New Laws
Child Status Protection Act, H.R. 1209, Pub. L. No.
107-208)
This legislation, signed into law on August 6, 2002, deals
with the issue of children losing their eligibility for immigration
benefits due to I.N.S. processing delays. Minor children (under
21) generally immigrate in one of the following ways:
- derivatively, based on a family or employment-based visa
petition filed on behalf of a parent;
- derivatively, based on a parent's winning the diversity
lottery;
- based on an immediate relative (IR) petition filed on
behalf of the child by a U.S. citizen parent;
- based on a second preference (2A) petition filed on behalf
of the child by a lawful permanent resident parent;
- derivatively, as the minor child of an asylum applicant;
- as a battered immigrant child.
Eligibility based on any of the above may terminate or change
upon the child's reaching the age of 21, a phenomenon entitled
"aging out." As a result of enormous backlogs and processing
delays, many children entitled to derivative benefits "age
out" before a parent's case is finally approved and residency
granted. In the case of an IR or 2A petition, the child who
turns 21 ceases to be an immediate relative or minor child
and may have to wait several years before a visa number is
available him.
Under the Child Status Protection Act (CSPA), derivative
eligibility or immediate relative/minor child status would
be determined based on the age of the child at the time the
visa petition or application for benefits was originally filed
and not on the age of the child when residency is finally
granted. The result is that children who are under 21 when
a benefit is petitioned or applied for will effectively never
"age out" or change to a less favorable visa category. As
a result, families will be able to immigrate together, without
having to leave older children behind to fend for themselves.
Work Authorization for Spouses of Treaty Traders and
Investors and for Spouses of Intra-company Transferees (H.R.
2277 and 2278, Pub. L No. 107-124 and 107-125
This legislation, signed into law on May 17, 2002, provides
spouses of (E-1 and E-2) Treaty Traders and Investors and
the spouses of (L-1) Intra-company Transferees with the ability
to apply for employment authorization during the validity
period of their visas. This is a great boon for families of
these visa holders whose spouses were previously forbidden
to work without some independent eligibility.
Pending Legislation Development, Relief,
and Education for Alien Minors Act (DREAM Act) S. 1291.
This legislation, overwhelmingly approved by the Senate
Judiciary Committee on June 20, 2002, addresses the plight
of undocumented children brought to the United States at a
young age. Every year, young children arrive in the United
States with parents seeking to build a new life here. These
children grow up speaking English and attending American schools
never realizing that they are not U.S. citizens. Upon graduation,
they suddenly find the road to their future blocked before
them. Without documentation or any method for regularizing
their immigration status, these children have little to look
forward to.
The DREAM Act would allow undocumented high school graduates
to receive in-state college tuition usually reserved for state
residents. The Act would also create a path to obtain lawful
permanent residency for students brought to this country at
a young age who have succeeded in graduating from high school.
Eligibility would be based on age, length of U.S. residence,
high school graduation and a demonstration of "good moral
character." The DREAM Act, if passed, would provide undocumented
high school graduates with a chance for a bright future in
the United States: affordable college tuition and the ability
to affirmatively enter the U.S. job market upon graduation.
Family Reunification Act of 2002 (H.R. 1452)
This bill would provide some long-awaited, albeit limited,
relief to long-term permanent residents from the harsh 1996
laws with respect to one's ability to apply for relief from
deportation. The 1996 laws stripped basic rights from a large
class of long-term permanent residents who, having committed
crimes in the past, had long since paid their debt to society.
These individuals were suddenly deportable to countries to
which they no longer had ties and unable to apply for any
relief from deportation. The Family Reunification Act (FRA)
would allow a limited class of these of individuals (three
categories) with special hardship cases to present the facts
of their cases to an immigration judge. The three categories
are as follows:
- permanent residents who were brought legally to the U.S.
as young children and who now face deportation;
- permanent residents who committed crimes prior to their
reclassification as "aggravated felonies" by the 1996 laws;
- permanent residents who have committed relatively minor
crimes.
FRA would allow these individuals to explain the facts of
their cases and any mitigating factors before an immigration
judge. Although it is a very modest proposal, FRA would at
least offer eligible individuals their day in court and a
chance to keep their families together in the United States.
Although there have been other laws passed and legislation pending
that directly affect non-citizens, it would be impossible to
mention them all in a short article. Much of the information
contained in this article was gleaned from the American Immigration
Lawyers Association (AILA) web site. For more information regarding
recent legislation and pending bills affecting immigration and
AILA's legislative advocacy efforts, please visit the AILA web
site located at www.aila.org.
To schedule a consultation regarding how these laws may
affect your individual case, please contact me at 954-342-0260
or email me at dlevy@dianalevy.com.
|
