DREAMers, DACA AND THE SENATE BILL

 In the wake of the Senate bill’s strong passage out of the Senate, advocates and DREAMers may be wondering whether it is wiser to apply for DACA or wait for legalization. The answer is simple: It made sense to pursue DACA before S.744 was introduced and it makes even more sense now. The fact of the matter is that the Senate bill is NOT law. And even if it becomes law, as presently structured, DACA recipients stand to benefit in various ways. This Fact Sheet describes the relationship between DACA and the DREAM Act within S.744 and explains how provisions within the bill could render the legalization process cheaper and more streamlined for DACA recipients than for others going through the

process.

                          Legalization for DREAMers
Senate Bill 744 would establish three differing pathways to earned legalization for the nation’s undocumented – one for DREAMers, one for agricultural workers, and one for individuals who don’t fit into the aforementioned groups. Sections 2101-03, 2211-12 (pgs. 137-203, 241-276). Except for agricultural workers, the legalization process begins with seeking Registered Provisional Immigrant (RPI) status, which is the temporary lawful status the bill would create. Section 2101 (pg. 137). The pathways diverge on the question of when an RPI may seek a green card. Rather than waiting for the border triggers to be met, as other RPIs will be required to do, Section 3(c)(2) (pg. 13), DREAMers may seek their green cards five years after receiving RPI status, 245D(b)(1)(A)(i) (pg. 196).To qualify for the bill’s fast track to permanent resident status for DREAMers, applicants will have to
demonstrate that they held Registered Provisional Immigrant (RPI) status for five years, entered before the age of 16, graduated from high school or its equivalent and, unless they get a waiver, show that they pursued either higher education or military service.1
Section 245D(b)(1)(A) (pg. 196).
Moreover, DREAMers will be able to apply for citizenship immediately upon receiving a green card, section 245D(b)(3) (pg. 201), whereas other RPIs will have to be green card holders for three years before applying for naturalization. Section 2102(c) (pg. 193-95).
Legalization for DACA Recipients
Legalization could be faster and easier for DACA recipients. If the bill becomes law, it will take DHS many months before it starts accepting applications for RPI status. Among other implementation tasks, DHS will have to promulgate new rules after receiving comments from the public, design new forms and procedures, establish infrastructure, and train employees. DACA recipients stand to benefit before other RPI applicants because their application process will likely be different.

DACA recipients may be able to become RPIs without filing new applications. Section 245B(c)(13) (pg. 170-71) authorizes DHS to grant RPI status to a DACA recipient if renewed national security and law enforcement clearances have been completed and the individual has not engaged in conduct since being granted DACA that would make him or her ineligible for RPI status. DACA recipients may also be able to become green card holders more quickly. The bill allows DHS to adopt streamlined procedures for DACA recipients to apply for green cards under the DREAM Act. Section 245D(b)(2)(C) (pg. 201). If DHS chooses to do this, it will make the process for getting a green card easier and faster than the process for other DREAMer green card applicants. Legalization could be a lot less expensive for DACA recipients. Legalization under the Senate bill would be expensive. It would involve paying penalties totaling $2,000 as well as filing fees. But DACA
recipients likely won’t be hit so hard. DACA recipients may not have to pay the filing fee to receive RPI status. Section 245B(c)(10)(A)(iii)(II)(pg. 167) allows the Department of Homeland Security to exempt “defined classes of individuals” from paying the RPI filing fee and singles out DACA recipients for this potential exemption. In addition, those younger than 16 on the date they initially entered the country—a category that necessarily includes all DACA recipients—will not have to pay the $1,000 penalty to receive RPI status.
Section 245B(c)(10)(C)(i) (pgs. 167-68).
DREAMers versus DACA Recipients
DACA recipients and those that would qualify for the bill’s DREAM Act are not one and the same. In two significant ways, the DACA requirements are more restrictive than Senate Bill 744’s DREAM Act. First, DACA is only available to individuals who resided in the United States continuously since June 15, 2007. USCIS DACA FAQ. The DREAM Act, on the other hand, does not contain such a far reaching continuous residence requirement. 245D(b) (pg. 196-97). Second, DACA is limited to individuals who were born on or after June 16, 1981. USCIS DACA FAQ. By contrast, the DREAM Act would impose no age ceiling. 245D(b) (pg. 196-97). In these ways, the DREAM Act is open to a wider universe of individuals than DACA. The DREAM Act’s education or military service requirement, however, is more onerous than the corresponding requirement for DACA applicants.

DACA may be granted to individuals who go no further in school than high school or its equivalent. USCIS DACA FAQ. By contrast, absent a waiver, the DREAM Act’s fast track to permanent residency is limited to those who either go beyond high school into institutions of higher education or those who serve for four years in the military. 245D(b)(1)(A)(iv)
(pg. 196-97).

Article from American Immigration Council.

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Is the Senate immigration law reform bill already influencing immigrant visa availability?

The Senate immigration law reform bill, if passed, will provide new ways to obtain immigrant visas (green cards), but also will eliminate some existing option for foreign national to obtain U.S. permanent resident status.

New ways to obtain include option for foreign nationals with U.S. degrees in science, technology, engineering and mathematics (STEM), to obtain immigrant visas without requiring their employers to first obtain labor certification from the Department of Labor. Further, the bill will get rid of the existing backlogs in employment based immigrant visas for skilled workers. Also, if the bill passes it will create a merit-based visa system that would award green cards based on a holistic assessment of an alien’s skills, education, work history, ties to the United States, knowledge of the English language, business activities, community service, and country of nationality.However, the bill if passed, will eliminate diversity visa program and family based immigrant visas petitions for U.S. citizens’ siblings.

When August 2013 visa bulletin (http://www.travel.state.gov/visa/bulletin/bulletin_6028.html) was released, one would not help but think that the proposed bill is already influencing the immigrant visas availability. In the released bulletin, the employment based immigrant visas for Indian nationals with advanced degrees backlogs decreased considerably. The cut-off date for this category went from September 1, 2004 to January 1, 2008. Also, the cut-off date for spouses and children of U.S. permanent residents went from October 8, 2011 to being current/available. This means that in the month of August 2013, spouses and children of green card holders who have been waiting to adjust to green card status will be able to do so as the immigrant visas will become available. It also means that green card holders who have not filed for their spouses or children’s immigrant visa petitions, may do so and concurrently file for adjustment of status (if spouses and/or children are present in the U.S. in any non-immigrant visa status).