The November elections are shortly
approaching and we are now weeks into the current fiscal year
without Congress and the Administration agreeing on major aspects
of the federal budget as well as important policy issues like the
Latino and Immigrant Fairness Act (LIFA). Congressional
disarray is obvious. House and Senate Republican leadership,
having failed to move appropriations through Congress, even had
trouble agreeing on when to recess and return after the elections
for a needed lame-duck session. Furthermore, Republican
leadership has calculated that they will not be harmed
politically by not reaching agreement before the elections on the
budget or other important issues, like LIFA. Both parties
are expecting to return to a lame-duck session strengthened by
election results.
Continued Efforts Needed with
Congress. Be Sure to Vote on November 7: It is
important that Lobbyists, and coalition partners take every
opportunity during these few days before the election to let
House and Senate candidates know how important LIFA is
specifically (which includes the restoration of Section 245(i),
NACARA parity, and updating the 1986 registry date to help the
late legalization class) and to ask these candidates their
positions on immigration issues generally. (See material on
InfoNet for details about LIFA.)
Also be sure to vote and urge everyone you know who is eligible to vote. Our fight in support of LIFA will continue during this lame-duck session!
Republican Proposal (The LIFE Act)
Welcome, Similar to LIFA in Important Respects, But Doesn’t
Go Far Enough: LIFA has been debated in the political
climate described above, and in the context of discussions about
the Commerce, Justice, State (CJS) appropriations bill. Congress
recently passed this measure without LIFA. The President
has threatened to veto the CJS bill, which Republican leadership
has yet to send to him, if it does not include LIFA. Instead
of LIFA, the Republican response, spearheaded by Senator Orrin
Hatch (R-UT) -- with the support of Representative Lamar Smith
(R-TX), and Senator Phil Gramm (R-TX), has been the Legal
Immigrant Family Equity Act (The LIFE Act), details of which are
below. The LIFE Act proposal would: instead of
restoring Section 245(i), create a new “V” visa that
would grant work authorization, protection from deportation, and
allow adjustment of status only for spouses and minor children of
legal permanent residents; allow members of certain class action
suits (and not others) who did not pursue their legalization
claim under the 1986 program due to INS misinformation to pursue
their legalization claims; and provide temporary visas for
spouses and minor children of U.S. citizens who marry abroad, so
that they can come to the U.S. while their immigrant visa is
being processed.
Advocates welcome this proposal, while
underscoring that it is not a substitute for LIFA. It does not
restore Section 245(i), extend NACARA to people fleeing civil
strife and war -- thereby correcting for past discriminatory
treatment of refugees, nor cover everyone (and their family
members) harmed by the INS’ mishandling of the 1986 amnesty.
Republicans’ Rejecting to Date
Administration’s Compromise: An October 27 White
House letter noted the Administration’s willingness to
compromise on the 1986 registry date which LIFA opponents and the
press incorrectly label a “blanket” amnesty. The
White House, again reiterating in a November 1 letter, a
willingness to consider, instead of updating the registry date, a
proposal to legalize those here prior to 1982 who would have
benefited from the 1986 legalization but for INS’
misinterpretation of the law. Unfortunately, Senator Hatch,
in his October 30 response, by not even acknowledging the
compromise, rejected it. Continuing to seek
compromise, the White House, also in the November 1 letter, urged
Senator Hatch to work with the White House to achieve an amicable
solution, emphasizing “there actually is more common ground
than your recent letters suggest.”
What’s Next? Advocates
believe and hope that agreement can be reached. There is
now little difference between the Republican and Administration’s
plans with regard to the 1982 late legalization class. What is
left is agreeing on how to deal with keeping families together,
the main goal of the restoration of Section 245(i), and
equalizing the treatment of deserving refugees, the goal of
NACARA parity. However, Representative Lamar
Smith is not playing a helpful role. In an October 31
letter to Hill colleagues, he mischaracterizes LIFA and
criticizes NACARA parity by noting that “there is a big
difference between those who suffered under a Communist
totalitarian regime the U.S. government opposed and fled the
country, and those who left a country where there was a
government we supported (such as in El Salvador and Guatemala).”
Advocates call on President Clinton and
Senate and House leaders to negotiate a reasonable agreement that
will help long-time immigrants and their families become
permanent residents. The Administration and Republican
leaders are not that far apart on policy. Both proposals
would benefit immigrants who have been in legal but vulnerable
status, as well as those who are here illegally. Both merit
Congressional approval. LIFA and The LIFE Act combined
would provide stability and relief to hundreds of thousands of
long-term, tax-paying immigrants and their families and
employers. We urge leaders on all sides to negotiate a
positive agreement.
SUMMARY OF PROVISIONS IN THE LIFE ACT
The LIFE Act, as introduced by Senator
Hatch, includes provisions that would help immigrants who are
residing in the U.S. both legally and illegally. Both these
groups merit relief that is provided in the Hatch proposal.
However, this proposal is silent on two important issues,
restoring Section 245(i) and NACARA parity. In addition,
the provision in the LIFE Act that would adjust the status of
late legalization applicants does not provide remedies for all
harmed by INS errors and provides no relief for immediate family
members. The LIFE Act, along with LIFA, introduced by
Senators Kennedy, Graham and others, together, would provide the
necessary relief.
The New “V” Visa: Temporary
Status for Spouses and Minor Children of Green Card Holders:
The LIFE Act creates a new temporary visa, a “V”
visa, that would allow the spouses and minor children of lawful
permanent residents (“green card” holders) who are
waiting their turn in the visa quota backlog line to enter the
United States and be granted work authorization. (Currently they
are prohibited from getting a visitor visa because they are
intending immigrants). In order to qualify, a green card
petition must already have been filed with the INS on behalf of
the spouse or child as of the date of enactment of the law, and
the application must have been pending for at least 3 years.
Spouses and minor children of green card holders who have been
unlawfully present in the United States will be eligible to
obtain the V visa. These individuals may subsequently apply to
adjust status to permanent residence based on their sponsor’s
petition by paying a $1000 fee, as long as they were physically
present in the United States between July 1 and October 1, 2000.
Analysis:
Welcome, but
limited, Relief – While the “V” visa recognizes
the need to provide relief to people in long backlogs, it
is available only to family members for whom an
application has been filed as of the date of enactment. Future
applicants are ineligible. Further, the “V” visa
is available to only spouses and minor children of green card
holders (the Family 2A category). It is unavailable to all
other family members, including the spouses and children of U.S.
citizens, the unmarried sons and daughters of U.S. citizens
(Family 1st category) or unmarried sons and daughters
(21 years of age and older) of green card holders (Family 2B
category), many of whom “aged-out” of the spouses and
minor children category because of processing delays. Married
sons and daughters (Family 3rd category) and brothers
and sisters of citizens (Family 4th category) also are
not covered. Because this measure is available to eligible
spouses and minor children of green card holders whether they
reside within or outside of the U.S., The Act does not
distinguish between legal and illegal immigrants. Rather,
it offers protections for some family of green card holders while
offering no protections to others, including the family of U.S.
citizens and the valued employees of U.S. companies. This
measure is a welcome additional remedy, and should be considered
in addition to, but not instead of, the full restoration of
Section 245(i), which offers relief to all who would be eligible
to adjust based on a family or employment relationship.
Expanded
Benefits offered to a Narrow Class for a Limited Period of Time:
The “V” visa also would protect people from
deportation, grant work authorization, and would allow adjustment
for certain spouses and minor children who reside in this country
and who are out of status. These benefits, directed to people who
are out of status, are granted only to certain spouses and minor
children of legal permanent residents: others are not
granted these benefits, which go beyond that offered by a
restored Section 245(i). Because Section 245(i) grants
eligible people only the ability to adjust when they become
eligible, but grants no legal status until then, the restoration
of this much-needed provision would grant more people a lesser
benefit. Further, it appears that the “V” visa is
available only to those certain spouses and minor children who
are in this country from July 1, 2000 to October 1, 2000 –
an attempt, we believe, to narrow further the people eligible for
this benefit.
New Temporary Status for Spouses and Children of U.S.
Citizens: The LIFE Act expands the use of
the “K” temporary visa, which currently allows
fiancées of U.S. citizens to enter the United States for the
purposes of getting married, to include those who married U.S.
citizens abroad and are awaiting approval of their green card
applications (and their minor children). The measure also would
provide those K visa holders with work authorization. Because of
backlogs and delays in INS processing of visa petitions for the
spouses of U.S. citizens, foreign nationals who marry U.S.
citizens abroad often must be separated from their new spouse for
months until their green card application is processed and a visa
is issued. Current law prohibits these spouses from entering the
United States during this period because they are intending
immigrants.
Analysis:
Concerns if this measure will provide
intended relief: The provision requires the U.S.
citizen spouse to file a K visa petition with the INS in the
United States in order to obtain the temporary visa for their
foreign spouse. Since the U.S. spouse must have already filed an
immigrant visa petition before filing the K visa petition,
this is a duplication of effort. In addition, in many areas of
the country, INS processing of K visa petitions is as slow or
slower than immediate relative immigrant visa petitions. Further,
in order to be issued a K visa, fiancées must currently undergo
full medical examinations and complete all necessary paperwork
for their eventual green card. This provision may actually increase
the time of separation of a U.S. citizen from their spouse and
stepchildren. A preferable remedy would be to allow the receipt
for filing of an immigrant visa petition to be adequate for
issuance of a K visa to a foreign spouse, and to grant work
authorization upon admission.
Will not provide relief for spouses of
U.S. citizens who are already in the country: Because
of the absence of 245(i), a foreign national who is married to a
U.S. citizen but who entered the country illegally cannot obtain
permanent residence without leaving the country and being
separated from their spouse for three or ten years. This
provision will do nothing for families in this plight.
Remedies
Not Provided to All Harmed by INS Errors: This proposal does
not provide remedies to everyone who was harmed by the INS’
mishandling of the 1986 amnesty. It provides relief
only to those people who filed for membership in two very
specific class action lawsuits (CSS v. Reno and LULAC
v. INS). It would provide no relief for others
who were harmed by INS in the same manner as these class members,
but were unaware of these lawsuits and therefore never filed for
membership in those class action suits. It also would
provide no protection for people who were part of other class
action lawsuits that were just as successful and arguably more
meritorious because the class members actually filed for amnesty
on time (cases like Proyecto San Pablo; IAP;
or Zambrano).
No
Relief Provided to Spouses and Minor Children: The Hatch
proposal also does not provide relief to the spouses and minor
children of the late legalization applicants who have been
waiting for years for permanent residency. This omission
stands in contrast to the 1990 IMMACT law that included a family
unity proposal for the 1982 amnesty applicants. Because the
late legalization applicants never got permanent residency, they
were never allowed to apply for their family members to receive
permanent residency. If the INS had adjudicated their
applications properly, the applicants and their family would be
permanent residents by now. By this omission, the Hatch
proposal offers no procedure by which family members of
applicants can adjust.
Cumbersome
Process Creates Barriers to Adjustment: In addition, because
the Hatch proposal maintains the same cumbersome process as was
used in the 1986 legalization program, some of the same problems
that occurred then are more than likely to occur now, especially
because resources available then will not be available under the
Hatch proposal. For instance, while the Hatch proposal mandates
that applicants must understand basic civics and be able to
speak, write, and read ordinary English, there are no longer any
federally funded classes that applicants can attend to meet these
requirements.
WHAT THIS PROPOSAL LACKS
The Hatch proposal does not restore Section
245(i) or implement NACARA parity.
Section 245(i) would allow eligible
people to adjust their status in the U.S. Section 245(i) allowed
people living in the U.S. to pay a $1,000 fee and adjust their
status. Since Section 245(i) was grandfathered in 1998, INS
backlogs have skyrocketed, families have been separated,
businesses have lost valuable employees, and eligible people must
leave the country (often for years) in order to adjust. This
provision is a pro-family and pro-business measure that would
provide millions of dollars in additional funding (about $200
million in a recent fiscal year) to reduce INS backlogs, at no
cost to taxpayers and would eliminate roadblocks in the way of
people becoming legal. It has bipartisan support. Especially
given that the “V” visa allows the immediate family
members of permanent residents to be forgiven for their unlawful
entry, Section 245(i) needs to be restored to at least grant a
lesser benefit to U.S. citizens’ immediate relatives and
other family members as well as the valued employees of U.S.
employees.
NACARA
Parity would correct flawed 1997 and 1998 legislation that
treated differently legitimate refugees from Central America and
Haiti. America routinely has passed nation-based legislation and
should not, just days before the end of this session of Congress,
decide that such an approach is flawed. Thus, while refugees from
certain Central American and Caribbean countries now are eligible
to become permanent residents, current law does not help others
in similar circumstances. Congress needs to act again and
pass NACARA parity to ensure that refugees from El Salvador,
Guatemala, Honduras and Haiti have the same opportunity as their
brothers and sisters covered by NACARA.