Article 9-28-03
The Next Amnesty? Can You Prepare for It?
Are we seeing the outlines of the next amnesty plan in the Kolbe-Flake
bill, H.R. 2899, the “Border Security and Immigration Improvement
Act” (Jim Kolbe/Jeff Flake, R-Az), introduced into Congress
on July 25, 2003, and promised support by President Bush on August
10, 2003? White House support is certainly enough to get the bill
noticed and greatly improve its chances for passage, but there are
other factors helping it: The time is appropriate as the president
needs a big event to continue his strong support from the Hispanic
population in time for his reelection campaign of 2004. In addition,
the bill has enough in it to offend many on the left and right,
a good sign for a controversial bill which would otherwise be politically
dead if it favored only one side. Conservatives are already up in
arms against it, Hispanic advocacy groups are opposed to the bill's
long wait for green cards, and the American Immigration Lawyers
Association characterizes it as flawed legislation. Similar but
less defined legislation is presently in the Senate, S.1387, the
“Border Security and Immigration Reform Act of 2003”,
introduced by Senator John Cornyn of Texas on July 10, 2003, which
can act as the accompanying Senate bill.
The key features of the bill for illegals in the country are its
provisions allowing individuals legal status who have final orders
of exclusion, deportation or removal; forgiving all types of fraud
involved in entering the U.S. and obtaining fraudulent documentation
to work; making illegals go through a three-year period of time
in H-4B status during which no changes of status or adjustments
of status to permanent residence are permitted; allowing spouses
or children to obtain derivative status during the three year period
if they were illegally in the U.S. before August 1, 2003; imposing
a $1500 charge plus application fee upon aliens to change status
to H-4B (except for children under the age of 17); allowing the
H-4B alien to upgrade his or her status to H-4A at the end of the
three year period upon sponsorship of a U.S. employer willing to
pay ($1,000 if more than 500 employees and $500 if less and an application
fee) and to go through an electronic job registry of the Department
of Labor for 14 days to ensure that there are no equally or more
qualified U.S. workers for the position. During this 3 year period,
H-4A aliens are allowed to be sponsored by their employers for permanent
residence without restriction of quota numbers (a necessary feature
in light of the 8-11 million illegal aliens in the country at this
time). Without the aid of the employer, H-4A aliens can self petition,
but only at the end of the three year period of H-4A status. To
do so of course, the H-4A alien would need the employer's assistance
to apply for extension of H-4A status -- this time without fee or
having to go through the job registry.
There are three major requirements in the bill for eligibility
of illegals – 1) Illegal entry into the U.S. before August
1, 2003 or becoming illegal through status expiration or any other
act of illegality having been known to the government before August
1, 2003; 2) Proof that the illegal alien has worked in the US before
August 1, 2003 up through the date of application filing; and 3)
Residence in the US since date of entry through the date of application
filing. Ineligible aliens include those excludable for criminal
acts (except for crimes relating to unlawful entry in this country
or presence or document fraud to gain a benefit under the immigration
laws or to satisfy an aspect of the immigration laws), security
concerns or public charge grounds. “J” exchange visitors
still subject to 2 year home residence requirements and persecutors
of others for reasons of race, religion, membership in social group,
nationality or political opinion are also ineligible.
What can illegal aliens do to prepare themselves for this amnesty
if it comes to pass? Is it already too late to do anything? The
answer is “maybe not.” Dates are not fixed in stone
at this time. Dates of eligibility can be changed, either in this
legislation as it wends its way through the political process or
any other legislation which receives attention by Congress. Looking
back at the Immigration Reform and Control Act of 1986, (IRCA, the
last amnesty or as termed by Congress, “Legalization”)
many eligible aliens had trouble proving that they were actually
present in the United States by the date of eligibility. This writer
would therefore suggest that those who are illegal take immediate
steps to prove their presence in the United States on a definitive
basis if they have not already done so. They may have difficulties
of proof if the only evidence of being here by the eligibility date
are materials such as statements and affidavits from friends and
relatives, leases, and membership cards or identification cards
from private organizations. The most convincing evidence would be
official materials such as I-94 entry/exit forms, passports obtained
at their countries' consulate or embassy in the United States, U.S.
driver's licenses, U.S. bank accounts (not joint accounts), U.S.
tax returns, or minor citation tickets by the police or other federal,
state or city agencies. Even just applying for a TIN (explained
below) would be proof of physical presence
The second requirement – working in the U.S. prior to August
1, 2003 – is applicable to principal aliens, not to their
derivatives who arrived in the US before that date. It is difficult
to know what level of proof will suffice to show that applicants
have worked before that date as many if not most illegal immigrants
are paid off the books. The best proof of course would be payment
of taxes as that would be irrefutable proof of actual work. The
IRCA cannot be used for guidance because residence and not work
was the major criteria for acceptance in the last amnesty. Is the
BCIS prepared to be lenient in accepting alternate forms of proof?
Will the separation of the INS into three separate agencies with
the BCIS being devoted to customer service help aliens? Or will
the ingrained culture of enforcement and retention of former enforcement
officers on the BCIS side defeat this goal? Alternate forms of proof
could include items such as canceled checks from workplaces, correspondence
to the applicant at the worksite, notarized statements of past employment
from employers, co-workers, and objective customers and suppliers
with knowledge of the applicant's employment, etc. Will the BCIS
employ the same standards accepted by examiners in employment based
cases of notarized statements from employers or if such statements
are not able to be obtained, an affidavit of unavailability and
the reasons for such by the applicant along with notarized statements
from others in or outside the workplace with knowledge of the individual's
experience in the workplace? Because there is no past amnesty standard
against which to judge the rigorousness with which BCIS will adjudicate
proof of past employment, readers who have not yet paid taxes or
possess Social Security cards are encouraged to have their employers
immediately begin paying them by check rather than cash, go to the
IRS (Internal Revenue Service) to apply for a tax identification
number (TIN) to begin recording payments on the books (please note
that this does not insulate employers from liability for hiring
illegal aliens), and obtain sworn statements pertaining to the facts
of past employment from employers and others. Statements obtained
at this time may prove very useful as they may be more believable
than those obtained when an amnesty law has passed, and the number
of affiants now available may be greater today than at a later date.
The third requirement of illegal residence in the U.S. from eligibility
date through date of application filing should not prove to be a
major obstacle for most applicants. Unlike the IRCA of 1986 which
required years of prior residence to qualify, this plan envisions
a very short period. Questions may arise as in the IRCA with the
meaning of the bill’s terms “resided” and “be
in an unlawful status”, but the BCIS can draw upon its IRCA
experience and not make the same mistakes which prompted class action
lawsuits which continue today and attendant changes of law by Congress
in reaction to the suits. From this law firm's experience in dealing
with cases from IRCA and the Chinese Student Protection Act (CSPA)
of 1992, both of which involved proving residence over a period
of time, it can be anticipated that the BCIS will have a relaxed
standard of proof once an alien's presence on the date of eligibility
can be clearly proven. In IRCA and the CSPA, the INS was willing
to accept most types of secondary evidence-even 1 or 2 items per
year-as proof of residence for the remaining time. Such proof included
employment letters, school records, school identification cards,
transcripts, affidavits from credible witnesses, leases, letters
from overseas to the applicant, letters that the alien had sent
to relatives overseas, receipts for transactions involving personal
property and services, insurance policies, association, group or
organization records, utility bills, phone bills, etc.
It is clear in looking at the proposed legislation that it will
not be the perfect solution for many individuals and groups. However,
that very imperfection may be its beauty and the key to political
acceptability. At the very least, HR 2899 gives readers a concept
of the parameters of any possible bill for an amnesty in the near
future.
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