Published February 22, 2021

By Richard Hanus, Esq.

It’s been more than 20 years since our nation has enacted any significant legislation to allow our nation’s undocumented population an avenue to legalize their status.  The most recent provision,  Section 245(i) of the Immigration and Nationality Act, was neither simple nor straightforward.  It was potent, though, affording hundreds of thousands, if not millions, of otherwise law abiding foreign nationals without immigration status a path to permanent residence (green card).  Its primary requirements included having a qualifying family member or employer to petition them along with the payment of a financial penalty for violating their status.

Fast forward to 2021 and President Biden has started a new conversation on U.S. immigration and presenting a far ranging plan to make our immigration system more streamlined and practical, including a plan to allow our otherwise law abiding, undocumented population to come out from the shadows.

Indeed a path to legalization is only one of among dozens of provisions that make up the U.S. Citizenship Act of 2021, the new legislation presented to the U.S. House of Representatives on February 18, 2021 and the U.S. Senate on February 21, 2021.  Whether all, some, or any of these provisions make it into a final law depends on a multitude of political variables – some obvious, some more subtle.  Here are just some of the highlights of the 350+ page legislative PROPOSAL (i.e. not yet law and still to be debated in Congress!!):

—  An immediate path to lawful permanent resident (green card) status, and then a 3 year wait for U.S. citizenship eligibility for the following classes of undocumented individuals:  a) those who entered the United States as children and are covered by DACA, b) individuals in “Temporary Protected Status”, a status premised on severe humanitarian conditions in the applicant’s native country c) certain classes of farmworkers,

 — A 5 year path to lawful permanent resident status for other undocumented individuals present in the U.S. as of January 1, 2021 as long as they pass background checks and fulfill other requirements.  This larger class of undocumented would receive employment authorization immediately, a chance at a green card in 5 years, and eligibility to seek U.S. citizenship in 8 years,

—  Expanded, speedier options for family members of U.S. citizens and residents to attain lawful status while waiting in family preference visa lines,

—   Spouses and children of green card holders will be treated like spouses of U.S. citizens, in terms of a quicker path to lawful residence,

—    An increase in yearly allotment of U visas available for certain undocumented victims of crimes who assist law enforcement in their prosecution – from 10,000 to 30,000,

—     Asylum seekers present in the U.S. will no longer face a 1 year filing deadline,

—    Game changing expansion of options for employment based work visa and green card applicants, including increased supply of annual visas, decreased wait times, and fewer logistical hurdles – especially for foreign students receiving advanced degrees and seeking to put their education to use here,

—      Elimination of the disproportionately harsh 3 and 10 year bars to re-entering the United States for individuals who departed the U.S. following a 6 month + overstay or undocumented period,

—    Employment authorization for spouses and children of H-1B work visa holders.

U.S. immigration law and policy has become as politically explosive an issue as there is.  Based on the escalated social temperature our nation has reached in the past 4 years, I expect the discourse on this new legislative proposal to be other than civil and reasoned.  Along with legitimate pros and cons to be discussed, noisy statements premised on fear and misinformation will be all too prominent.  President Biden and members of Congress have signaled that success here will not be defined as an all or nothing venture, so perhaps parts of the proposed plan stand a chance at being enacted.  No one knows for sure which if any, will make it through the gauntlet, but the ride toward the end of the conversation will undoubtedly be bumpy.  Maybe that a serious conversation has at least been started is something to be grateful for.  In the meantime, buckle up.

PUBLISHED February 22, 2021– “IMMIGRATION LAW FORUM” Copyright © 2021, By Law Offices of Richard Hanus, Chicago, Illinois