Legalization First, then a Path to Citizenship After… Maybe

By Tom K. Wong,, @twong002

The 2013 version of comprehensive immigration reform (CIR) now has a name: the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. Here is a preliminary summary of what the path to citizenship looks like. The Senate “gang of 8’s” summary outline can be found here and the full text and be found here.

The Senate bill creates a fairly straightforward and direct path to citizenship for DREAMers and for undocumented agricultural workers after border triggers are met. But for the rest of the undocumented population, while the bill creates a path to citizenship, the road there runs through a first step of legalization and then a second step of border security triggers and a minimum 10-year wait. The following details the path to citizenship for the bulk of the undocumented population.

The First Step: Legalization

  • Registered Provisional Immigrant (RPI) Status   Undocumented immigrants in the U.S. prior to December 31, 2011 – and have lived here continuously since – can apply for RPI status. RPI status will mean that a person is considered lawfully present, which means that he or she will not be subject to deportation, will be able to legally work in the U.S., and be able to travel freely outside of the country. RPI status will require an initial $500 fee. After 6 years, another $500 fee will be required. It is important to note that those in deportation proceedings will be able to apply for RPI status. Moreover, criminals will be excluded and individuals with RPI status will not be eligible for federal means-tested public benefits (think welfare).
  • Reuniting Families Separated by Deportation   An important aspect of RPI status is that undocumented immigrants who were deported before December 31, 2011 can apply to reunite with their families if they are the spouse or parent of a U.S. citizen or permanent resident. DREAMers who were deported can also apply to re-enter the U.S. as a registered provisional immigrant.

The Second Step: Border Security Triggers

The step that generally precedes eligibility for citizenship is that of being a lawful permanent resident (LPR) – think having a green card. However, the outline of the Senate bill clearly states that those with RPI status will not be eligible to adjust to LPR status until the Southern Border Security Strategy (see previous post here) has been “substantially deployed and substantially operational.” What constitutes “substantially deployed” and “substantially operational” is not entirely clear. However, what we do know from the Senate bill is that this determination will be made by the Secretary of the Department of Homeland Security (DHS) in consultation with the Comptroller General. Moreover, while the border security aspects of the Senate bill identifies a 90% effectiveness rate as a major goal, the border security triggers that precede the path to citizenship are not defined as such – again, at least based on what we currently know. What this means is that the current administration and the current DHS Secretary, or what is more likely, the next administration and whomever is appointed the next DHS Secretary, are going to play pivotal roles in shaping the course of the path to citizenship.

Additional triggers include: a) the “substantial completion” of additional border fencing, b) the implementation of mandatory E-Verify for all employers, and c) the use an electronic entry-exit system across air and sea ports of entry.

10-Year Wait

Assuming that the border trigger hurdles are overcome, after 10 years a registered provisional immigrant can apply to become a legal permanent resident. However, the process is complex. The Senate bill changes immigration rules so that some decisions regarding who can immigrate will be determined by a merit-based system, which awards points to individuals based on employment, education, and length of residence in the U.S., among other factors. The merit-based system creates new legal categories that prospective immigrants fall into. One of these categories is “long-term alien workers and other merit based immigrant workers.” These persons are defined as those “who have been lawfully present in the United States for not less than ten years” and who do not qualify to immigrate via other pathways. This language alludes directly to RPI immigrants.

There are two important points to make.

First, under this new merit-based system, immigrants with RPI status can only apply for LPR status if they have worked regularly, pay a $1,000 penalty, pay all taxes owed, and demonstrate English language skills, among other requirements.

A second, more important point relates to the formula in which immigrants with RPI status are able to adjust to LPR status. The outline of the Senate bill refers to a flexible allocation formula for merit-based visas, but the total number of these visas would be capped at 250,000 annually. Ceteris paribus, this means that it would take 4 years for 1 million immigrants with RPI status to receive LPR status and thus be on the path to citizenship, 8 years for 2 million immigrants, 12 years for 3 million immigrants etc. Given this allocation formula, some may never make it onto the path to citizenship (e.g., a middle-aged person applies for RPI status in 2014, waits 10 years, and then is towards the end of a 5 million person line that will take an additional 20 years to clear – a 5 million person line is a low estimate in many scenarios). One option would be to adjust the allocation formula for merit-based visas to permit a much higher annual cap. Another option would be to remove caps altogether for those with RPI status. What is telling about the outline of the Senate bill is that it does not specify how immigrants with RPI status will become legal permanent residents beyond the details of the merit-based system. Given the language that is increasingly used by Senator Marco Rubio and others of “no special path to citizenship,” this particular omission may portend a major fight ahead over how long it will take some undocumented immigrants to make it onto the path to citizenship. It also hints at – particularly when looking to the debate in the House – the many more compromises that are likely to be made (despite what the gang of 8 says) in order to get a deal done.

Update, 1:59AM PST, 4/17/13.

With the details of the Senate bill now in hand, we now know that not only are those with RPI status not eligible to receive a merit-based immigrant visa until at least 10 years after enactment (paragraph g of Section 2302), but they will also not be able to begin accruing points towards a merit-based visa until after a 10-year wait (see Section 2301). Moreover, under track 2 of the merit-based system, “long-term alien workers and other merit-based immigrants,” who are defined in paragraph (c)(3) of Section 2302, beginning in 2029, “must be lawfully present in an employment authorized status for 20 years prior to filing an application for adjustment of status” (p. 274).