The Comprehensive Immigration Reform Act of 2010 – Part II


Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer  questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

By Michael Phulwani
This is part II of the article on Comprehensive Immigration Reform Act of 2010, which was introduced on September 29 by Senator Menendez (D-NJ) and Senator Leahy (D-VT). This document, which has been prepared by the American Immigration Law-yers Association (AILA), summarizes the bill. Note that this summary was prepared under extremely short time constraints and may have inaccuracies or omissions.

Title IV — Reforming America’s legal immigration system:
Family and employment based immigrant visas reforms:

Recapture of immigrant visas lost to bureaucratic delay: The bill recaptures unused employment-based visas and family-sponsored visas from fiscal years 1992-2007. For future fiscal years, unused visa numbers will “roll over” to the next fiscal year. To reduce current backlogs, this section exempts immediate relatives from the cap on the number of immigrant visas. Aliens who are: (1) a derivative beneficiary of an employment-based immigrant; (2) aliens with extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim; (3) aliens, who have earned an advanced degree in the sciences (not including the social sciences), technology, engineering, or mathematics from a United States institution of higher education and have been working in a fieldrelated to their degree subject in the United States under a nonimmigrant visa during the two-year period preceding their application for an immigrant visa; (4) alien physicians, who have completed service requirements of a waiver or exemption requested by an interested State agency or by an interested Federal agency.

Reclassification of spouses and minor children of lawful permanent residents as immediate relatives: The bill reclassifies spouses and children of lawful permanent residents as “immediate relatives” to promote the efficient reunification of families. This will allow the spouses and children of lawful permanent residents to immediately qualify for a visa. Spouses and children of immediate relatives, who are eligible to “accompany” or “follow to join” the primary applicant may use the same visa petition. To address the fact that some countries face unreasonably long backlogs, this section revises the per country immigration limits for family-based immigration from 7 to 15 percent of total admissions and eliminates the employment-based caps.

Promoting family unity: This bill increases the government’s discretion and flexibility in addressing numerous hardships caused by a provision that bars individuals unlawfully present in the United States from utilizing our legal immigration system. Amends INA to create one three year bar of inadmissibility for noncitizens, who are unlawfully present for more than year. The unlawful presence bar does not apply to an alien for whom an immigrant visa is available or was available on or before the date of the enactment of this Act, and is otherwise admissible to the United States for permanent residence. Any unlawful presence accrued by an alien as of the date of enactment this Act shall not be considered unlawful presence for the purpose of this subparagraph if such alien was as of the date of enactment (1) the beneficiary of a pending or approved petition for classification as an immediate relative; (2) the beneficiary of a pending or approved family-based or employment based petition or (3) a derivative beneficiary of a pending or approved immediate relative, family based or employment based petition. This bill also amends current bars to relief for false claims to citizenship to require a willful violation and it allows the Secretary to consider US citizen children’s interests in determining whether a waiver is appropriate.

Discretionary authority with respect to removal or deportation of citizen and resident immediate family members: The bill provides for judicial discretion in removal proceedings if removal, deportation, or exclusion is against the public interest or would result in hardship to the alien’s US citizen or permanent resident parent, spouse or child.

Equal treatment for all stepchildren: The bill equalizes the treatment of step children by allowing step children, who are 21 years of age at the time of the parent’s marriage to immigrate. The current age limit is 18 years for stepchildren and 21 years for most other children.

Widows, widowers, and orphans: The bill extends the relief given to orphans, widows and widowers in the 2009 DHS Appropriations bill to certain relatives living outside the US. It also clarifies naturalization requirements for widows and widowers and clarifies that that orphans, widows and widowers may continue to seek waivers under the Immigration and Nationality Act on the basis of the relationship to the deceased spouse.

Fiancé child status protection: The bill allows the DHS Secretary or the Attorney General to adjust the status of an individual immigrating to the United States on a fiancé visa and any accompanying minor children to conditional permanent residence, provided that the marriage occurred within three months of admission and the noncitizen is not inadmissible. A noncitizen, who is eligible for a waiver of inadmissibility under current law, may still adjust status. The age of the noncitizen using a fiancé visa and any minor children will be the date the fiancé petition is filed. The provisions will apply to all petitions pending as of the date of enactment as well as past petitions denied that would have been approvable if this section had been in effect in which case a motion to reopen or reconsider shall be permitted.

Special humanitarian visas: The bill gives the DHS Secretary the discretion to waive any of the requirements of title 8, United States Code, in the case of aliens whose cases involve special humanitarian considerations, in a number not to exceed 1000 in any fiscal year.

To be continued: In forthcoming articles, we will provide additional information on this bill, including Family & Employment based Visa Reforms, and Legalization of undocumented aliens.

Courtesy American Immigra-tion Lawyers Association.

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