Immigration Reform: Will Registered Provisional Status Lead to Permanent Residence?

Undocumented immigrants

Senate Bill 744, otherwise known as the Gang of Eight’s Comprehensive Immigration Reform Bill was passed by the Senate Judiciary Committee and has begun debate on the Senate floor.  While debating the bill on the Senate floor, it is my hope that a special emphasis on the visa numbers is analyzed and discussed.  It is my opinion that the current Immigration system has been severely damaged due to the insufficient Immigrant Visa Numbers and the lack of available non-immigrant and immigration visa options.  Big picture the structure of the Senate Bill is fair and does address the current problem.  But as we all know the devil is in the details and the details that caused the current immigration problem should be analyzed, solutions proposed and debated.  In other words, does Senate Bill 744 address the causes of the current immigration problem?  More specifically, are there adequate visa numbers available to eliminate the backlog and allow the current undocumented persons in the US a realistic path to citizenship?  Does the comprehensive Immigration Reform Bill address the immigration needs of persons currently outside the US so that the lack of viable visa options does not encourage illegal crossing?  So much time is focused on ensuring a secure border, which is obvious.  However, there really would not be that much demand to cross the border illegally if there are fair and available visa options.  Its not like the people that crossed the border illegally are looking to break the law and not do things the legal way.  The overwhelming majority of people that crossed the border illegally had no other choice, since our immigration system left them with no options (i.e. family immigration backlogs with wait times of 20 years +, lack of skilled and unskilled worker visas, ambiguous investment visa rules, and the list can go on and on).  This article will address the Registered Provisional Status category, and whether the proposed visa numbers will effect the adjustment of status option from Registered Provisional Status to Permanent Resident.

What is Registered Provisional Immigrant Status?

There are an estimated 11 million undocumented aliens in the US.  This number could potentially be higher if you included persons that overstayed their visas and are living under the shadows.  These persons are unable to obtain social security numbers, driver’s licenses, legal employment, and live their lives as open members of their communities (i.e. unable to rent or purchase homes in their own names, have bank accounts, travel freely, etc).  The Registered Provisional Status is essentially equivalent to being a conditional resident, where undocumented persons that entered the US without inspection or have overstayed their visas and meet the eligibility requirements will be able to live in the US, work in the US, and take temporary trips outside the US upon being approved for their adjustment of status to registered provisional status.   To be eligible for Registered Provisional Status, one must have been in the US since December 31, 2011 (there are exceptions if travel outside the US was brief, causal, and innocent), have not been convicted of a felony or three or more misdemeanors, pay their assessed taxes and penalty fees, and pass background checks.

Under the Senate Bill, Registered provisional Status would allow the government one year to publish the required regulations before applications may be accepted.  So theoretically the Registered Provisional Status application process would begin within or after a year of enactment.  Upon approval of the Registered Provisional status application, the provisional immigrant will have RPI status for 6 years and may be renewable for another 6 years provided the Immigrant has been employed continuously or can prove income or assets of 100 or more of the poverty guidelines (certain exceptions may apply).  As specified above, the Registered Provisional Status is only provisional immigrant status, it is not permanent residence.  If the provisional immigrant wants to live in the US permanently, a permanent residence application will be required.

When can a Provisional Resident Apply for Permanent Residence

The main concern of the Senate is that undocumented aliens do not jump ahead of others currently waiting for an Immigrant Visa or Permanent Residence.   To be eligible for permanent residence, the intending Immigrant must have been in Registered provisional Status for at least 10 years.  In other words, if Registered Provisional Immigrants are to obtain Permanent Residence, all of the people currently waiting in line must have received their permanent residence or at least their cases have been adjudicated.   And this is where my main concern exists.  For example, unmarried Sons and Daughters of US Citizens from Mexico (the first preference of the family based immigration system) currently have a 20 year wait time.  EB3 (Skilled Immigrant Visa workers) applicants from India currently have a 10 year wait time.  Each year these backlogs keep getting worse each year.  The Senate Bill as written intends to continue to cap the amount of Family based Immigrant Visas available each year at 480,000 (minus the visas assigned to Immediate Relatives but not less than 161,000  ie. US Citizens spouses or parents of US Citizens over 21).  Moreover, the currently available 140,000 Employment Based Immigrant Visas will not be increased under the Senate Bill.  The issue becomes, since the Senate bill does not intend to increase the amount of available Immigrant Visas this year, how can the Comprehensive Immigration Bill reduce the current backlog?  I don’t pretend to be a statistician, I am an Immigration Lawyer and as an Immigration Lawyer, I focus on understanding the United States Immigration Laws and applying the law to best achieve my clients’ goals.  Understanding statistics is not taught in law school, consequently is not part of the training to become an immigration attorney.  But, I will do my best to present the data so that you can decide for yourself whether Registered Provisional Immigrants will have the opportunity to adjust status to permanent resident status and eventually naturalize under the Senate’s proposed Comprehensive Immigration Reform bill.  As of November 2012, the Department of State reported there are 4,412,693 persons on the Immigrant Visa Wait List.  The per country limit on preference related Immigrant Visas is 26,600.  On the wait-list, there are currently 1,316,118 persons from Mexico, 462,145 persons from the Philippines, 332,846 persons from India, and 240,637 persons from China.   For the detailed breakdown, please see here.  The Senate bill’s answer to eliminate this backlog is to eliminate the country cap limitations.  In other words, there will not be any increases to the amount of Immigrant Visas from the current level but a reallocation of Immigrant Visas on an as needed basis.  So on the surface it seems unlikely, but again I am not a statistician.  The purpose of this article is to raise awareness for the debate to include testimony from trusted mathematicians or statisticians in whether it is not only possible, but highly probable that based on historical data the backlog will be reduced by 2021.  Surely as an Immigration Lawyer I am not trained for this and I highly doubt an average Congressman can make the necessary projections.  The available Immigrant Visa numbers should be supported by sound math and statistics based on sound data.  I don’t know how to go from a wait list of 4.4 million to 0 in 7 years with only 300,000 available Immigrant Visas (ie. 160,000 family preference Immigrant Visas + 140,000 Employment Immigrant Visas).  This is an important issue, because it is great that the Senate is trying to address the problem and at least for 10 years 11 million+ people without status will have status, but Provisional Status is only good for up to 12 years, is my understanding.  300,000 multiplied by 12 years is 3.6 million.  It is closer to the current 4.4 million on the waiting list but keep in mind, if 11 million people apply for Registered Provisional Status and eventually adjust to permanent resident status and there are only 300,000 Immigrant Visas available each year, and there is still a backlog, where do the available visa numbers come from?  Again I am not a statistician but rather an Immigration Lawyer doing simple math.  I don’t pretend to know if my math is correct, but it should be something debated in the senate.  Providing Registered Provisional status to the current situation is significantly better than doing nothing but if the math is correct, it’s like a doctor giving his patient a cure for 12 years as opposed to a cure for a lifetime.  The Senate has this chance to fix a problem  for good, will they give the patient any medicine, medicine for 12 years, or medicine for a life time.

By Attorney Gerald Cipolla

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