Bipartisan Agreement for the Border Security and Immigration Reform Act of 2007

Steven Tuan Pham, Esq.

May 18th, 2007

On Thursday May 17, 2007, a bipartisan group of Democrat and Republican Senators struck a deal for swift immigration reforms. Please know that this is NOT law at this point, and the immigration law as we know it, still exists. The proposal will go through the Senate and the House for debate and to vote. This is a lengthy process that could take months. Even if both the House and the Senate passed the Bill, and President Bush signed it into law, it would still take another 6 months to become effective. Therefore, we are still at least 6-12 months away from the effective date.

What are the Changes to Immigration Law?

Title I – Briefly, Title I of the Act requires that certain "triggers" must be met before Title IV (guest worker) and Title VI (Z Visas be issued). Though, the legalization process may begin by allowing undocumented aliens to enter under a probationary period. In addition, Title I authorizes the reinforcement of border patrol, including the hiring of 18,000 more Customs and Border Patrol agents, building barriers (fencing, motor vehicle barriers, and ground-based radars), and sophisticated surveillance technology.

Title II – Title II restricts the rights of aliens within this country, and will implement tougher enforcement of immigration violations and convictions of criminal aliens. The new law will change the definition of an "Aggravated Felony," as defined under IIRIRA of 1996. It will widen the list from what it is currently. It also makes it illegal for aliens to bear arms (perhaps a drastic retroactive repercussion of recent shooting events and will mostly be challenged by conservative Representatives and Senators and the arms industry). Additionally, tough measures will be implemented for immigration fraud and for the illegal entry of aliens.

Title III – Title III addresses the illegal hiring of undocumented aliens. This Title seeks to implement a high-tech employment verification system within 18 months from the date of enactment, or sooner if the system is certified as operational. The employer will have to enter the employee's information electronically by the end of the first day of employment. If the employee's information is unconfirmed, additional procedures must be implemented and the employee must verify with certain designated government agencies to resolve the issue. Stiff penalties and criminal and civil liabilities will be enforced for employers who violate the law.

Title IV – Proposed a temporary worker visa (Y-visa). The Proposed Act would create a non-seasonal Y temporary worker (Y-1 visa), two categories of seasonal temporary workers (A-2A for agricultural workers, sheepherder, goat herders, and dairy workers and Y-2B for non-agricultural workers; and their spouses and minor children (Y-3 visa). However, the Act would not allow the employees to choose the employers. Instead, Y temporary visas will be issued through an electronic matching database with "willing employers." Families under the Y-3 status will have to show proof that they have medical insurance and that the primary visa holder's salary must be at least 150% above the poverty line. The Y-1 visa holder can stay in the U.S. for a period of 2 years and can renew one time. However, there must be a 1 year period outside the U.S. before returning. Y-2 visa holder may stay in the U.S. for a maximum of 10 months and they cannot obtain an extension. Y-1 has a cap of 400,000 per year and will be reassessed on a year to year basis. Y-2A visa has no cap while Y-2B visa has a cap of 100,000 per year which will also be reassessed year to year. "Exceptional Y Workers" may also obtain Green Cards (Please see below).

Title V – Title V is expected to be vigorously challenged as it seeks to restructure the current family based petition by eliminating 4 of the 5 current non-immediate relatives categories; namely, they are unmarried children over 21 of U.S. citizens (1st Preference), unmarried children over 21 of permanent residents (2nd Preference subcategory B), married children of U.S. citizens (3rd preference), and brothers and sisters of U.S. citizens (4th preference). 400,000 visas will be allotted annually to clear the current family-based backlog. 10,000 visas will be allotted to exceptional Y- Visa workers. The current employment based categories will be replaced with a "point system" based on the alien's merits. More restrictively, only 40,000 visas will be allotted annually for parents of U.S citizens and 87,000 will be allotted to spouses of green card holders. This is uncharted water as immigration law traditionally has been family based (i.e. based on the closeness of family members) and through employment based preferences. The Act has a safe-harbor for family-based petitions that were filed prior to May 1, 2005 in which the current immigration law will apply to those cases.

Title VI – Provides a new visa category, "Z-visas," for the current 12 million undocumented aliens and those that overstayed their status. The new Z-visa will be a 4-years renewable visa. Only those that arrived in the U.S. prior to January 1, 2007 will be eligible. Because it is extremely difficult to prove one has been in the U.S. by a certain cut-of date, it is extremely important for aliens to keep all documents, including paper work, mail, letters, contracts, and leases to which their name appears on with a date. The alien must currently be working and must pay a penalty of $5,000. The alien will be on a probationary period before he/she can file for adjustment to a green card holder. The probation period will last until all family-based petition backlogs are cleared (expected to clear within 8 years). They must return to the home country to file for alien registration with USCIS attaché with the Consular Office and pay another $4,000 penalty. Under the Dream Act, undocumented aliens under 30, who entered the country as a minor, not on their own accord, can enter after three (3) years as a Z-visa holder.

Title VII – Title VII provides $100 million to assist USCIS in providing services and assimilate aliens into the U.S.

Please keep in mind that this is not LAW as of today, May 18, 2007. As stated, the proposed compromise will most likely be challenged by conservatives as an "amnesty" and by liberals for the crash and unpredictable result for the new "merit point" system, which drastically changed family-based immigration, which is ingrained in U.S. immigration law. The proposal must pass both the House and the Senate before it becomes a Bill to be presented to the President. If both the House and the Senate passes the Bill, however, President Bush is expected to sign it into law because immigration is considered by many as President Bush's top priority at home.

Immigration and naturalization law is very specialized and requires years of experience to understand and traverse difficult provisions. If you or anyone you know needs qualified legal assistance with an immigration matter, contact the Houston Immigration Attorneys at Smith & Garg today! We are Immigration Attorneys Who Make Connections!