5 Highlights from the U.S. Citizenship Act

At a whopping 353 pages, here are my key takeaways of the proposed bill

Introduced to Congress this past Thursday, the U.S. Citizenship Act of 2021 is a much anticipated bill, especially given the Administration’s priority to provide a pathway to citizenship for undocumented persons.

Of the 353 pages that I’ve read through, here are the five key takeaways that I’d like to share with you all:

  • Replacement of the outdated term “alien”

  • Roadmap to citizenship for undocumented persons

  • Exemption of cannabis misdemeanors in reference to grounds for inadmissibility

  • Curtailment of presidential authority over suspensions and restrictions of specific groups

  • Updates to employment-based immigration

As a reminder, I am not a lawyer. If you are in need of actual advice, please seek an attorney that specializes in immigration law.

Eliminating the word “alien”

Since the enactment of the Immigration and Nationality Act (INA) in 1952, any person that was not a citizen or national of the U.S. was labeled an “alien”. The term, of course, draws from the Latin word alienus, meaning stranger or foreign. And while the word choice seems sound in the most clinical sense, I’ve often felt as though it positions me and other “aliens” as the Other (a reference to Edward Said’s text, Orientalism), which evokes feelings of being lesser than the American born population.

Even as someone with a green card, the feeling of belonging to the U.S. is still tenuous at best. While the official title for a green card holder is “Lawful Permanent Resident”, the following terms are synonymous and still in use: “permanent resident alien” and “resident alien permit holder”. Again, this reduction of us potential immigrants to such a clinical term underscores the 1950s mindset that we are still second class folks, even though we are told we can make a life here—it as if only naturalization will absolve us of our foreignness.

What this Administration made clear in its fact sheet from Inauguration Day is that the bill “recognizes America as a nation of immigrants by changing the word ‘alien’ to ‘noncitizen’ in [its] immigration laws.” In one sweeping move, the bill essentially proposes a “Find and Replace” for every mention of alien and alienage with “noncitizen” and “noncitizenship”. The neutral quality of this updated term is key; it takes away, at least in the legal context, sentiments of hostility toward those that do not hold a U.S. passport. It is to say that it is very much the change in attitude toward immigrants that we need in the 21st century.

Pathway to citizenship for agricultural workers, Deferred Enforced Departure (DED), Temporary Protected Status (TPS), and DREAMers

While DREAMers headlined a lot of discussions (which we will get to), the bill also proposes the opportunity for those classified as agricultural workers and under DED, TPS to be come permanent residents of the U.S.

Estimated to benefit approximately 1 million undocumented farmworkers, the addition of Sec. 245F to 8 U.S.C. 1255 et seq. outlines one requirement in addition to the usual eligibility requirements (such as passing all criminal and national security background checks and payment of all applicable fees). This added requirement, if proof is required (as opposed to an affidavit signed by the petitioner), casts some concern in my mind.

During the five-year period preceding the date of petition filing, the noncitizen agricultural worker will have had to perform “agricultural labor services for at least 2,300 hours or 400 work days.” Why this clause makes me uneasy is the consideration that for those who have been working as an undocumented farmworker, keeping track of the paperwork of hours logged—especially over the course of years and at multiple sites—may very well not have been at the forefront of priorities. Further, employers may not keep such records, as knowingly hiring undocumented workers can result in fines and jail time.

For those designated under TPS and DED, the added condition is straightforward: having been continuously present in the U.S. since January 1, 2017. While the number of persons that seek to benefit from this expansion of eligibility is small (320 000 under TPS and 3600 under DED) in comparison to the number of applications under other categories, it is still incredibly important to provide a simplified pathway for those who have had to leave their home country and spend subsequent years in a legal purgatory, never knowing if and when their program status might be rescinded (let’s recall when Trump tried to repeal, but then finally extended protections for Liberians under DED).

Side bar: a quick primer on TPS and DED

TPS allows foreign nationals—countries are designated by the secretary of Homeland Security—to remain in the U.S. if catastrophic circumstances in their home country prevent their return.

  • Examples for reasons to designate a country for TPS include ongoing armed conflict environmental disaster

  • People under TPS can work legally in the U.S.; however, it is not currently a pathway to lawful permanent resident status

  • Countries currently designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen

DED is similar to TPS in that it allows foreign nationals to stay in the U.S. if there are reasons preventing said national from returning to their home country. The key difference, though, is that it is the President—not Homeland Secretary—that grants this status.

Of the proposed pathways to citizenship for undocumented persons, the requirements for DREAMers are the most stringent of all the classes proposed for coverage under this bill.

The petitioning DREAMer will be eligible to petition for adjustment of status if they meet the following conditions:

  • Was younger than 18 years of age on the date of entry in to the U.S.

  • Has earned a high school diploma, a commensurate alternative, GED, or a high school equivalency diploma

  • Has obtained a degree from an institution of higher education or has completed at least two years (in good standing) of a program in the U.S. leading to a BA or higher degree or has earned a recognized postsecondary credential from an area career or technical education school

  • Has served in the uniformed services for at least two years, and if discharged, received an honourable discharge or demonstrates earned income for periods totaling at least three years and been employed at least 75% of the time the DREAMer has had valid employment authorization (except if the DREAMer was enrolled in postsecondary education; in which case, the three-year requirement will be adjusted to include the time of enrollment)

  • Has registered under the Military Selective Service Act if the DREAMer is subject to registration under that Act

The need for completion of higher education is one that does not sit well with me. Where the average student debt is now $28 006 for white graduates and $52 726 for Black graduates, affording postsecondary education as an undocumented person has the added challenge of not being eligible for federal funding. While undocumented students may be eligible for state or college aid, and private scholarships, it may not be enough to cover tuition, whose rates continues to rise. It is unfair and irresponsible for lawmakers to consider putting DREAMers in a position that requires taking on potentially large amounts of student debt.

And while there is the opportunity for a waiver to be applied, it is at the Secretary’s discretion on whether or not the reasons for not completing the requirement is compelling enough.

Hopefully, we will see a revision to the requirements for DREAMers and clarification on whether or not proof of time worked for agricultural workers will be needed as the bill moves through Congress and the Senate.

Calling out cannabis

Even though over 30 states have legalized use of cannabis to some degree (i.e. medical and/or recreational use), it is still labeled, at the federal level, as a Schedule I controlled substance. Currently, if a noncitizen is convicted of the misdemeanor possessing ≤30g of cannabis, they are currently rendered inadmissible unless granted a waver under Section 212(h) of the INA; however, it must be noted that granting of the waiver is at the discretion of the Attorney General and not guaranteed.

Coming back to the current proposed bill, the grounds of inadmissibility (for context, the below notes that one is inadmissible if they’ve been convicted of 3+ misdemeanors) has been updated to retroactively exclude cannabis-related misdemeanors for states that no longer find it a chargeable offense.

(iii) has been convicted of 3 or more misdemeanor offenses (excluding simple possession of cannabis or cannabis-related paraphernalia, any offense involving cannabis or cannabis-related paraphernalia that is no longer prosecutable in the State in which the conviction was entered, any offense under State law for which an essential element is the noncitizen’s immigration status, any offense involving civil disobedience without violence, and any minor traffic offense)

Introducing the exemption of previous cannabis-related offenses is a complete turnaround from the 2019 memo about cannabis remaining a condition bar to establishing good moral character for naturalization. Even though legalization isn’t at the federal level, it is still a good indicator for both the industry and immigration that it is being looked at differently than it was decades ago.

Checking in on presidential power

How the Muslim Ban and its iterations managed to see the light of day was in part due to the vagueness and squishiness afforded by Section 212(f) of the INA.

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.  Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

Should the proposed amendment move forward as it stands, a considerable amount of parameters are put in place to ensure that no other executive order similar to the previous Administration’s is drafted.

Clearly a reaction to the previous Administration’s, the conditions for exercising such authority against a class of noncitizens promote careful consideration prior to action, followed by accountability.

  • The Secretary of State, in consultation with the Secretary of Homeland Security, determines first if there are sufficient facts that a particular class of noncitizens entering the U.S. will undermine the safety of the country, only then may the President suspend entry or impose restrictions

  • Suspensions/restrictions must comply with the following:

    • Narrowly tailored, using the least restrictive means, to achieve the government’s compelling interest

    • Specify and justify with supporting evidence the duration

    • Consider waivers, specifically family-based and humanitarian

  • Prior to the President exercising authority, the Secretary of State and the Secretary of Homeland Security shall consult Congress and provide specific evidence supporting the need for restriction/suspension

  • Reports shall be submitted to Congress:

    • One to be submitted no later than 48 hours after the President exercises authority

    • Another to be submitted no later than 30 days after the President exercises authority

    • Final report to be submitted no later than 30 days after the conclusion of the suspension/restriction

Employment-based immigration updates

Although the majority of the bill focuses on creating a pathway to citizenship for undocumented persons, addressing the southern border, and providing clarification for special statuses, there are several specific carveouts for employment-based immigration.

The first proposal in the section titled “Reforming Employment-based Immigration” is exempting STEM PhDs from worldwide levels and numerical limitations. In effect, noncitizens with a doctoral degree from an accredited U.S. institution of higher education will not be subject to quotas.

While the Administration suggests that this proposal is to help grow the economy, I cannot help but feel that all other fields of study are being heavily devalued. Already, international students with STEM concentrations can extend their Optional Practical Training (OPT) by 24 months. To contrast, a non-STEM international student is only provided 12 months of OPT. What a year’s worth of practical training actually means is that securing a job post-graduation that can lead to H-1B (or another guest worker visa) is effectively a mad dash. In turn, not having the luxury of another 24 months means that non-STEM international students are more so at the whim of employers and may accept positions that undervalue and/or underpay them.

The second key item in this section is the approach to addressing backlogs. Green card applications are based on the applicant’s country of birth, as opposed to citizenship (there are exceptions, but I won’t be getting into it here). The per country limit for the number of green cards awarded annually is 7% of the worldwide cap, regardless of the origin country’s population, which is part of the reason why we see huge backlogs for India and China. By adding the below clause to 8 U.S.C. 1151 (b), those who have already passed the 10-year mark will be exempted from the 7% cap and receive their green card as soon as possible.

(H) Noncitizens who are beneficiaries (including derivative beneficiaries) of an approved immigrant petition bearing a priority date that is more than 10 years before the noncitizen’s application for admission as an immigrant or for adjustment of status.

While this 10-year clause provides relief, it is a bandaid fix at best. Employment-based immigration reform needs to go farther than patchwork amendments and address the current visa classes, bringing them up to date for this century, and how noncitizens can be in a position that does not leave them beholden to the employer’s whim.

The third item of interest is the introduction of a regional economic development immigrant visa pilot program. The EB-5 (immigrant investor program) already has a similar program whereby targeted employment areas are available at a lower threshold to promote direct investment in areas that have had an average unemployment rate of at least 150% of the national average rate. While this visa program is not absolute—it is noted that the Secretary may establish such a program—we do know that should this program move forward, up to 10 000 visas will be available and that this program will not exceed five years.

Finally, the last item of note from me is the protection of children who risk aging out of their H-4 visas, which are issued for dependents of H-1B visa holders. Coinciding with long wait times for those that are subject to delayed priority dates, H-1B holders who do not receive their green card by the time their dependents turn 21 are faced with having their kids “aging out” of H-4 eligibility. If eligibility is lost, the former dependent must now seek an alternative nonimmigrant status, such as an F-1 or H-1B. Basically, it’s a headache that should never have been allowed to happen.

To prevent such a situation from happening again, this bill provides a continuum for aged out H-4 dependents provided that the child was younger than 18 years of age when first granted the H-4 status. In hindsight, the anguish caused could easily have been avoidable; however, it is understandable that this scenario was missed by many lawmakers on account of the disconnect between how the process should work vs. the backlog that exists.

And that’s a wrap from me on my five key takeaways from the U.S. Citizenship Act of 2021. As it makes its way through Congress and the Senate, I’ll be sure to note any changes to the bill.