Introducing the U.S. Citizenship Act of 2021
Democrats have introduced an ambitious and comprehensive immigration bill in both houses of Congress titled the US Citizenship Act of 2021. While the bill is predicted to pass the House of Representatives, the likelihood of it passing the Senate is unclear because this would require every single Democratic Senator and 10 Republican Senators to vote for the bill. These are tough odds to achieve, especially because this bill has controversial elements that have failed to pass before.
The US Citizenship Act of 2021 (“the Act”) opens with proposals to replace the term “alien” with “noncitizen” throughout the Immigration and Nationality Act, signalling a fundamental shift in how foreign nationals should be perceived and labeled in American society. The Act has three primary pillars, which largely correspond to President Biden’s campaign promises on immigration. The Act proposes:
1) A pathway to permanent residence and citizenship for certain foreign nationals residing in the United States;
2) Responsible management of the southern border and tackling root causes of migration in Central America; and
3) Reforming the way immigrant visas (“green cards”) are allocated.
Part 1 of the Act: Pathways to Citizenship and Other Related Reforms
The first part of the Act proposes a pathway to lawful resident status and eventually citizenship for specific segments of noncitizens who have been residing (with great uncertainty) in the United States:
Dreamers (individuals brought to the US before they were 18 years old and who are here without lawful status, many of whom currently hold DACA status);
Beneficiaries of Temporary Protected Status and Deferred Enforced Departure since January 1, 2017; and
Agricultural workers who have performed such services for the last five years.
There is no numerical limit to how many individuals can obtain permanent residence based on one of these three pathways. The Act also allows applicants to seek judicial review of a denial in federal court, which promotes better accountability. Otherwise, there is no oversight of agency decisions, which can change depending on the administration in charge (as we saw in the last four years).
Part 1 of the Act also seeks to remove the most common barriers to obtaining permanent residence, which generally relate to criminal offenses. Specifically, the legislation proposes:
Revising the definition of “conviction” so that offenses which are dismissed, expunged, annulled, vacated, or withheld do not prevent a person from obtaining permanent residence (even though there was a finding of guilt).
Expanding the “petty offense” exception from one to two offenses.
Allowing sentencing courts to recommend against removal.
Broadening the standards for waivers to include family unity, public interest, and humanitarian purposes rather than extreme hardship.
Finally, Part 1 of the Act proposes reviving and broadening the V visa category for beneficiaries of approved family-based petitions to live and work in the US until their permanent residence application can be adjudicated. Currently, due to substantial backlogs, these beneficiaries are separated from their family members in the US for many years. The V visa would provide an interim solution for these families.
Part 2 of the Act: Addressing the Root Causes of Migration in Central America and Responsibly Managing the Southern Border.
This part of the Act lays out an (extraordinary) four-year strategy for promoting the rule of law, security and economic development in El Salvador, Guatemala and Honduras to tackle the key factors contributing to the flight of families, unaccompanied minors, and other individuals from this region. The strategy seeks to build regional responses for refugees and asylum seekers in the Western Hemisphere so there is shared responsibility among the states for finding safety and protection for forced migrants.
It also identifies key ways in which to improve the management of our southern border (without building a wall and putting people in cages), such as deploying smart technologies that are minimally intrusive; giving medical training to Customs and Border Patrol (“CBP”) officers; and prohibiting the separation of children from their parents to deter migration.
Part 3 of the Act: Reform of the Immigrant Visa Allocation System
Part 3 of the Act is exciting because it speaks to nearly every pain point in our current immigration system caused by outdated statutory limits on the number of individuals who can immigrate to the United States.
On the family side, the Act proposes the following:
Expand the definition of “immediate relative” to include spouses and minor children of Lawful Permanent Residents, which would also exempt them from any statutory limit.
Recognize “permanent partners” as accompanying dependents (in addition to spouses and children).
Increase per-country limits for any family-based category from 7% to 20%.
Prevent the aging out of accompanying children due to long wait times based on backlogs.
Repeal certain bars for unlawful presence and previous removal for family members.
Recapture all the immigrant visas not used every year since 1992 (!).
On the employment side, the Act proposes the following:
Completely eliminate the per-country limit for employment-based immigrant visa processing, which principally affects nationals of China and India who face substantial backlogs in obtaining permanent residence.
Grant permanent residence to international students who earn a doctoral degree in a STEM field.
Authorize up to 10,000 green cards annually for noncitizens whose employment is essential to the economic development of cities or counties in which they will live or work (labor certification will be required).
Allow temporary suspension of employment-based immigrant visas in geographic areas or labor market sectors that have high levels of domestic unemployment.
Eliminate the non-immigrant intent requirement for international students in F-1 status.
Prioritize H-1B lottery registrations with higher wage levels (a regulation to this effect has already been drafted).
Grant work authorization to spouses and children of H-1B workers.
Allow adult children of H-1B workers to remain in the US in H-4 status if their parent has been sponsored for permanent residence.
Allow one-year extensions of status for individuals in L, O and F status until their permanent residence process is completed.
For the annual green card lottery, which aims to promote diversity in the US, the Act wants to raise the number of immigrant visas given from 55,000 to 80,000.
This section of the Act also limits the President’s authority to suspend the entry of noncitizens based on nationality (recall the Muslim travel ban) by requiring the President to specify the duration of the suspension and consult with Congress on the necessity of such a suspension.
Finally, Part 3 of the Act establishes a framework for the effective integration of permanent residents and their naturalization, including the formation of a US Citizenship and Integration Foundation to facilitate citizenship preparation. English learning and access to such education are listed as important elements of integration. That said, this part of the Act also eases the English knowledge requirement for naturalization applicants who are over 60 years old and who have been a lawful permanent resident for at least ten years.
Parts 4 and 5 of the Act: Revitalizing our Immigration Courts, Asylum System, and Sanctions for Exploitation of Workers.
The last two parts of the U.S. Citizenship Act seek to bolster our domestic institutions for managing US immigration. Specifically, the Act proposes the following:
Increasing the number of Immigration Judges (“IJs”), staff attorneys for the Board of Immigration Appeals, and support staff for IJs.
Create an Immigration Counsel Fund to facilitate the appointment of legal counsel at no cost to foreign nationals in removal proceedings who cannot afford representation or who are otherwise vulnerable, such as minors.
Expand the alternatives to detention.
Allow attorneys inside detention and border facilities so they can meet with their clients.
Ensure the durable return of individuals to countries in Central America so they can reintegrate in their home country.
Eliminate the one-year filing requirement for asylum seekers.
Grant work authorization to asylum-seekers within no more than 180 days from the time their application for asylum is filed.
Expand the U visa for victims of criminal activity who will assist in the prosecution of criminals to include victims of labor or employment violations, and increase the number of U visas available each year from 10,000 to 30,000.
Grant work authorization to applicants for U and T visas.
Protect migrant and seasonal workers from abuse by enhancing enforcement mechanisms.
This Act is a bold and progressive framework for strengthening our current immigration system, and reconceptualizing the terms of membership in our society. While it is unlikely to pass in its current form, it remains to be seen which parts get pushed forward as discrete legislative measures, which sections become the sticking points, and which proposals get implemented by regulation and/or agency memos. We will continue to keep a close eye on these developments and keep you updated.
This update is for informational purposes only. If you would like to discuss any of these developments in more detail, please do not hesitate to contact me.