THE NEXT AMNESTY? CAN YOU PREPARE FOR IT?

By Alan Lee^†‡

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?¹ 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.² 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 time³). 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”)⁴ 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?⁵ 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 books⁶ (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 today⁷ and attendant changes of law by Congress in reaction to the suits⁸. From this law firm's experience in dealing with cases from IRCA and the Chinese Student Protection Act (CSPA) of 1992⁹, 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.

^† The author is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was given 2 awards by the Taiwan government for his work protecting human rights in 1985. Readers may visit Mr. Lee’s website at www.alanleelaw.com.

^‡ This article © 2003 Alan Lee, Esq.

¹“The president was enthusiastic about the bill,” said [Jim] Kolbe. “He is supportive and told us to take the legislation up with his staff.” Tucson Citizen, August 11, 2003. Mr. Kolbe was further quoted in The Washington Times, September 3, 2003, as not expecting action now, but hoping that the groundwork could be laid for the debate, possibly during the presidential campaign and reiterating his conversation with President Bush that “I would say the president did indicate his views are very close to what we're proposing.” In a recent White House briefing when asked when the President would call for a proposal on immigration, White House Press Secretary McClellan responded that “The President has expressed his views and remains committed to that view.”

²Another reason for thinking optimistically about the legislation is the revenue side. Passage of the legislation could conceivably bring $10 billion plus in new-found revenues to the U.S. government. As opposed to the last amnesty, which imposed application fees of $185 on adults and $50 for children under the age of 18 and capped total family charges at $420 only to cover expenses of processing, the Kolbe-Flake bill envisions the program as a moneymaker with the government not only charging application fees to recover costs of processing, but also fines and surcharges to fund the public fisc. An eligible family of five with two parents, and children aged 19, 17, and 15 in addition to paying an application fee to cover processing expenses would pay penalty fees to the government of $6,000 to change status to H-4B. Only the child under the age of 17 would be exempt from the penalty. This revenue could prove important in helping to fund the government, which through the Bush tax breaks will have rising deficits throughout the decade according to projections of the Congressional Budget Office. That office, in contrast to the White House Office of Management and Budget's projection of a deficit peaking at $475 billion next year and then falling to just $62 billion in 2008, projects a deficit of $480 billion next year with a possible cumulative total of $5.8 trillion by 2013 -- The New York Times, August 27, 2003. HR 2899 unlike the IRCA does not require applicants to prove illegal residence stretching back five years, an important factor in holding down the number of applications in 1987. Therefore a large number of an estimated 8-11 million illegals may be eligible to apply. (Estimates of the number of illegal aliens in the U.S. have gone as high as 11 million, although there is no truly accurate number given the difficulties of counting an illegal underclass. The Census Bureau report of 2000 pegged the number as 8,705,421.) Besides being charged application fees in an amount deemed necessary to cover processing of applications, most individuals are required to pay a $1,500 fine and an employer must later pay another $1,000 or $500 (depending on size) for principal aliens to change status to H-4A. In addition, aliens outside the United States who can qualify for H-4A status will contribute heavily as employers must pay either $1,000 or $500 plus an application fee to have them enter the U.S., and the same fees are charged to employers who wish to sponsor changes of employment for the same aliens. With the illegal side of this legislation alone, if 5 million apply for this amnesty with 80% having to pay $1500, free and clear revenues to the government would be $6 billion. If 2.5 million principal alien workers apply for the next step to change status to H-4A (a realistic figure as many illegals are unmarried or are here without their families), and if employers who must pay for their services ($1,000 for employers with over 500 employees and $500 for employers with less) average a payout to the government of $650 per head, this would bring in an additional $1.625 billion to government coffers. The H-4A class for individuals residing outside the United States is unlimited in numbers under the bill, and the government can expect a steady stream of revenue from employers wishing to bring in such employees, or willing to offer new employment to H-4A aliens. Finally the legislation does not mention fees to be paid upon adjustment of status to permanent residence for former H-4B aliens. Will the bill be later clarified so that former illegals are allowed to adjust status like other applicants without regard to past illegality, or will there be another passage of section 245(i) explicitly allowing for, among others, adjustment of status for former H-4B aliens upon payment of the fine amount under section 245(i)? The current amount of fine for eligible participants is $1,000. The long-term effects of legalizing so many in the underground economy will be an added tax base of millions of people who never previously filed taxes.

³See footnote 2, supra.

⁴The Immigration Reform and Control Act of 1986, Public Law 99-603, 11/6/86, provided two legalization programs, one for aliens illegal in the country prior to 1982, and the other for farmworkers ("SAW" or Special Agricultural Workers) who were in the United States at least 90 days between May 1, 1985 and May 1, 1986, and could document their farm-related employment for 90 days during each of the years ending May 1, 1984, May 1, 1985, and May 1, 1986. Qualifying pre-1982 illegal aliens must have resided in the United States in an unlawful status since before January 1, 1982. This group included those entering the United States using non-immigrant visas and whose authorized stay in such status expired before January 1, 1982; those entering the United States using non-immigrant visas and whose authorized period of stay did not expire prior to January 1, 1982, but who violated the terms of their non-immigrant status - which violations were known to the government prior to January 1, 1982; and those entering the United States without non-immigrant visas and were in an unlawful status prior to January 1, 1982.

⁵8 CFR 204.5(g)(1):

“Evidence relating to qualifying experience or training shall be in the form of letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and title of the writer, and a specific description of the training received. If such evidence is unavailable, other documentation relating to the alien’s experience or training will be considered.”

Such would not seem to supplant former CFR 204.2(e)(1), March 17, 1975:

“If such affidavits cannot be obtained, the petitioner shall submit an affidavit by the alien beneficiary attesting to the reasons therefore, and shall also submit other documentary evidence of the alien’s qualification, such as copies of company records or affidavits by persons other than the alien’s trainers or employers having personal knowledge of the facts to which the affiants are attesting, setting forth the information specified in the preceding sentence.”

⁶The taxpayer identification number was created to allow individuals without Social Security numbers to file U.S. taxes. Illegal immigrants and others can file Form W-7 to the local office of IRS with appropriate identification such as passports or government documents, birth certificates as secondary documents, foreign driver's licenses, etc. Individuals can also ask the IRS employees to stamp a copy of the W-7 as received.

⁷League of United Latin-American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (commonly referred to as “LULAC”) challenged rejections of amnesty applicants who traveled outside the U.S. and returned between January 1, 1982 and November 6, 1986 using facially valid non-immigrant visas or other entry documents; Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. Catholic Social Services, 509 U.S. 43 (1993) (commonly referred to as “CSS”) challenged an INS determination that individuals leaving the United States for brief, casual and innocent purposes between May 1, 1987 - May 4,1988 without prior INS permission (advance parole) were ineligible for legalization; Zambrano v. INS, vacated, 509 U.S. 918 (1993) (commonly referred to as “Zambrano”) challenged INS' interpretation of regulations disallowing legalization to those applicants with children on public assistance on public charge exclusion grounds by asserting that Congress had instituted a new rule for legalization applicants who could show that they had a history of work in the U.S.

⁸In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress provided that no court had jurisdiction over IRCA claims unless the person asserting the claim or on whose behalf the claim was asserted by another, in fact filed a legalization application within the required period or attempted to file an application with the required fee and was turned away by the INS. In the Legal Immigration Family Equity (LIFE) Act of 2000, Congress repealed its stance in the IIRIRA and allowed amnesty claims to go forward for those who before October 1, 2000, filed a written claim for class membership to one of the three pending IRCA related class-action suits (Zambrano, LULAC and CSS).

⁹The CSPA was signed into law by the first President Bush on October 9, 1992, in response to the June 4,1989 Tiananmen Square killings. The application period ran from July 1, 1993 to June 30, 1994 and the eligibility requirements included residence in the United States on a continuous basis since April 11, 1990; and if the applicants had returned to China, physical presence in the People's Republic of China for no longer than 90 days between April 11, 1990 and October 9, 1992.

Copyright © 2003 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.