8/24/2004
Eligibility
to Apply for a Temporary Worker Nonimmigrant Status:
President
Bush's Immigration Reform Plan
does not automatically legalize
all the illegal aliens. It will just give an opportunity to apply for a certain
nonimmigrant status which is similar to the current H-2A and H-2B Temporary
Worker status. Under the current immigration, an alien who is an undocumented
alien or in out-of-status is ineligible to apply for any nonimmigrant visa
status in the United States.
Bush
plan will waive this ineligibility so that they can apply for such temporary
worker nonimmigrant status even if they are so-called illegal aliens. Since the
plan requires a rigorous labor market test, probably more rigorous than the
current temporary labor certification application for H-2 (A,B,C) visa
petitions, it may not be that easy.
Waiver
of 3-Year Bar or 10-Year Bar for Immigrant Visa Applications:
Under
the current law, those aliens who accumulate the unauthorized status from 6
months to 1 year are ineligible to return to the U.S. either on nonimmigrant
status or immigrant status for 3 years. If the unauthorized status reach 1 year
and the alien departs from the U.S., such illegal alien is unable to return to
the U.S. for 10 years.
The Bush
plan will waive such inadmissibility to the United States, should the illegal
aliens apply for a nonimmigrant or immigrant visa at the American Consulate in
his/her home country after completing the temporary work under the Bush plan for
3 years. This will be a huge benefit which was not available to even 245(i)
beneficiaries in the past. Currently, the 245(i) beneficiary is unable to return
to the U.S., if they are subject to the 3-year bar or 10-year bar, no matter
whether they have an advance parole. Accordingly, these people were unable to
travel outside of the U.S.
Waiver
of Other Inadmissibilities Related to Entry Without Inspections (EWI):
Certain
EWIs are subject to 5-year, 10-year, 20-year, or permanent bar under the current
law, should they fall under the certain provisions of the immigration statutes.
Bush plan may in all likelihood waive some of such bar to return to the U.S.
Foregoing
Benefits Extended to Immediate Family Members:
According
to the Bush plan, once the foregoing benefits are attached to the principal
illegal aliens, just like the 245(i) provisions, same benefits will be extended
to the dependent immediate relatives.
Bush
plan does not provide waiver of any other ineligibility or inadmissibility. If
such alien is deportable or inadmissible for committing a crime or fraud or
other acts of deportability or inadmissibility other than illegal entry to the
U.S. or overstay in the U.S., such aliens may not be eligible not only for the
Bush plan temporary worker eligibility but also for waiver of the
inadmissibility.
Once
the illegal aliens come out of the closet, such aliens may be vulnerable to
enforcement actions unless the Bush plan is translated into a special provision
in the legislation by the Congress that such information cannot be used by the
DHS to initiate an enforcement action. For instance, if the temporary worker
application is denied, the alien should return to the illegal alien status and
subject to deportation unless such legislation is enacted. Besides, the illegal
aliens can be arrested and deported until such temporary worker application is
filed.
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