Author: berdantx

Since the possibility of regularizing the immigration status of people who worked in services considered essential during the pandemic was envisioned, whenever legislators propose a new measure related to immigration, the question invariably resurfaces – and essential workers ).

Essential workers are those people who were (and remain) at the forefront of jobs considered essential for the maintenance of the country’s various infrastructure areas. While countless heroes contributed immensely to the nation’s economic reconstitution, essential workers were instrumental in ensuring security, as well as the preservation of the economy and society. However, despite the importance of their contributions, essential worker positions are, in general, the most exploited, undervalued, vulnerable and the pandemic has exacerbated such issues among immigrant essential workers.

Today in the United States it is estimated that among the 55 million workers in industries considered essential, at least 69% are immigrants working without authorization. Such immigrants, while indispensable to the economy, do not enjoy any benefits or protections from the federal government.

On March 15, 2021, Senators Alex Padilla and Elizabeth Warren introduced a bipartisan bill to amend the Immigration and Nationality Act (INA) providing for the possibility of adjustment of status (green card application) for essential workers. Such a measure would make it possible for more than five million essential migrant workers to be able to apply for a green card.

The amendment (S. 747) proposes to insert after section 245A of the INA, section 245B entitled Adjustment of Status for Essential Workers. But after all, who can benefit from this proposed law? Who are the essential workers

Eligibility All undocumented workers who received income performing an occupation considered essential between the beginning of the pandemic (January 27, 2020) until 90 days after its end, whether in the private, public, non-profit sector, industry or as an occupation. Such workers, provided they have worked in a sector indicated as essential, do not need to have completed a minimum workload to be considered eligible.

The activities considered essential are the following: (a) Health, (b) Emergency health care, (c) Sanitation, (d) Restaurant owner, food preparation, vending; preparation and meals; food packaging, food service, or delivery; (e) hospitality or retail; (f) fish, chicken or meat processing work; (g) agricultural work, including seasonal services; (h) gardening in a commercial or residential building; (i) commercial or residential construction or renovation; (j) activities related to residential, commercial and housing construction or public construction work; (k) domestic work in private households, including child care, housekeeping or cleaning; (l) natural disaster recovery, disaster reconstruction and similar constructions; (m) residential or community work including, home health care, residential care, assistance with daily activities, any service provided by caregivers as defined in section 799B of the Public Health Services Act, personal care aides, job coaches or providers of employment aides, and any other provision of care to individuals in their homes by direct service providers, personal care attendants and home health aides(n) Provision of home and family services, including child care services, in-home child care, such as babysitting services and care services provided by family members to other family members; (o) Manufacturing; (p) Storage; (q) Transport or logistics; (r) Janitor; (s) Laundry and dry cleaning operators; (t) Any other work in ‘Essential Critical Infrastructure Services or Manpower’ as described in the Department of Homeland Security memorandum entitled ‘Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During the COVID-19 Response’, issued in March 28, 2020 (as revised), on any date during the period described in subsection (i); (u) Any other work that a state or local government deems essential during the emergency referred to in subsection (i).

Legal Permanent Residence. Eligible essential workers will be able to apply for permanent residency -green card- for both themselves and their parents, children and spouses. If the essential worker has died due to COVID-19, their relatives will be able to apply for a green card individually. During the course of the process, both the applicant and his beneficiaries may receive a work permit.

Proof of employment. The proposed law requires essential workers to provide proof of income and ensures that evidence presented in the permanent residency application is not used to harm the employer. The proposal also includes protection so that the employee does not suffer retaliation for requesting the necessary documentation from the employer for their green card application.

Other application requirements. Green card applicants under this proposal must prove that they have been continuously residing in the United States since at least January 1, 2021. Applicants will be subject to a criminal background check and may become ineligible if they have committed certain crimes or criminal misdemeanors. At the time of application, an immigration fee will be due.

Ineligible. Ineligible for this application are foreigners who have maintained their status as a non-immigrant in accordance with section 101(a)(15) of the INA, with some exceptions.

While this proposed law brings hope to thousands of low-status immigrants who worked in essential industries to regularize their stay here in the United States, there is still a long way to go. The proposal still needs to be approved by Congress and signed into law by the President. Once approved, it must later be regulated by the responsible body so that it can only be implemented.

Therefore, it is important that these essential workers understand their immigration positions today in order to verify if there is a possibility of drawing up another legal strategy that will allow them to regularize their immigration situations regardless of the approval of this proposed law.

The country now known as the United States began its history as a nation of immigrants, its first inhabitants arrived here crossing a stretch of land that connected Asia to America over thousands of years ago. The first settlements were established in 1500 by Europeans led by the Spanish and French and in 1607 the English founded the first settlement at Jamestown in Colony Virginia.

Many of the early settlers came to the country seeking religious freedom, the Pilgrims escaped religious persecution in Europe and settled in what is now Plymouth, Massachusetts, followed by the Puritans, who established the Massachusetts Bay Colony. A large portion arrived in the country under contracted servitude, or against their will under slavery. Most immigrants, however, were looking for economic opportunities.

In the 19th century, the immigration movement was central to American history. At that time the country encouraged the coming of immigrants to popular uninhabited areas and had a relatively unrestricted immigration policy until the advent of the Civil War.

Between the period 1900 to 1950 almost 24 million people immigrated to the United States in a movement known as “The Great Wave”. The advent of the First World War reduced the influx of immigrants, but it resumed with intensity after its conclusion, leading Congress to implement a series of immigration policies. Since then, US immigration policy has been expanded and restricted depending on the acting government and world policies.

The current government has the political will to welcome new immigrants and regularize the immigration status of thousands of immigrants who call the United States home, but who are on the fringes of the system because they have no status. In line with this political will, on February 2, 2021, Executive Order 14012 was enacted.

President Biden’s Executive Order 14012 aims to restore confidence in the US immigration system and strengthen integration and inclusion for New Americans. The Executive Order recognizes the strength and importance of immigrants in the American economy and seeks to ensure that the country’s domestic laws and policies promote the integration, inclusion and citizenship of these individuals, more specifically, the measure stipulates that the Secretary of the Department of Homeland Security (DHS) ) “identify any agency action that fails to promote access to the legal immigration system.”

Executive Order 14012 states in its first paragraph that more than 40 million foreigners live in the United States today and thousands of Americans are of foreign descent. It then recognizes that new Americans and their families fuel the American economy in all segments of industry through their entrepreneurship, creating millions of jobs and contributing to the country’s art, culture and diversity.

The current administration recognizes the important role of immigrants in American society, both economically and culturally, and seeks to encourage public measures that demonstrate such recognition. However, it is crucial to understand that there is a fundamental difference between welcoming immigrants and granting with the violation of immigration laws. In this way, the current government is looking for ways to welcome new Americans through changes in internal policies, proposed laws and enactment of decree and continues to correctly apply the immigration law and its consequences for those who violate them and/or try to circumvent them.

In the words of President Biden, “Consistent with our Nation of opportunity and welcome, it is essential to ensure that our laws and policies encourage participation by immigrants, including refugees, in our civic life.” The proposal is that the federal government develop strategies to promote the integration, inclusion, and citizenship of immigrants in order to welcome the full participation of new Americans in this nation’s democracy, and not be permissive with those who behave contrary to the law.

In the United States, more than 2 million people get married every year.

The sad reality is that many of these people end up not embarking on a great love story but living a nightmare. According to the NCADV (National Coalition Against Domestic Violence), more than 10 million adults are victims of domestic violence in the United States and because it is a repetitive pattern of behavior, the victim usually only reports the aggression after numerous occurrences. This situation worsens in the case of immigrants, as the spouse often uses status (or lack thereof) as a means of control and intimidation, causing the person to remain in that situation for fear of being out of status or of possible deportation.

The good news is that he/she does not have to undergo this abuse to preserve his/her status and/or residency in the United States. If the immigrant is married to a US citizen or permanent resident (green card holder), and is a victim of domestic violence, he/she can apply for his/her green card without the participation of his/her spouse. Furthermore, the adjustment of status application does not depend on the applicant’s regular status.

What does this mean? It means that if the individual married a US citizen or permanent resident (green card holder) and is a victim of domestic violence, even though they are without status, they can apply for and have their green card granted while in the United States. This prerogative does not depend on a request for adjustment of status for a previous marriage; that is, even if an adjustment of status has never been requested from immigration, the person can request it through the approval of the domestic violence verification process.

The VAWA process (Form I-360) can be applied for by victims of domestic violence committed by US citizens and green card holders while they are married but also up to two years after death. of the U.S. citizen abuser, loss of the permanent resident abuser’s domestic violence green card, or the permanent resident or citizen’s divorce for domestic violence. It is important to note that although other individuals may also be eligible for this process, such as parents and children of aggressors, the focus here is on their spouses.

In the immigration process, as in life, domestic violence is not restricted to physical aggression. The USCIS (Citizenship and Immigration Services) defines domestic violence as “a pattern of behavior when an intimate partner or spouse threatens or abuses the other partner. Domestic violence can include physical assault, forced sexual intercourse, emotional manipulations (including isolation or intimidation), and economic and/or immigration-related threats. While most incidents of domestic violence involve men assaulting women or children, men can also be victims of domestic violence.”

The cycle of domestic violence is a highly sensitive subject, the victim often feels responsible for the situation they are in and is afraid to even ask for help. Of all the fears that lead an immigrant to get out of an abusive relationship with a US citizen or permanent resident, the fear of getting a green card doesn’t have to be one of them.

Drug trafficking is illegal, kidnapping of children is illegal, drunk driving is illegal. An individual, however, regardless of his immigration status, is never illegal. Even so, this way of describing someone who has violated the terms of their stay in the United States and is consequently without status has become common.

Although the terms visa and status are often used interchangeably, they are different immigration institutes. The term visa refers to the document stamped on the passport at a consulate or embassy abroad; while, the term status refers to the immigration status in which the individual is framed in the United States, as indicated on their I-94 form.

The only function of the visa is to authorize an individual to travel to a US port of entry (airports are also considered ports of entry) and apply for entry into the country. The visa itself does not guarantee its holder entry to the United States. It is the immigration agent at customs, after examining the passenger’s documents, who has the prerogative to authorize or not the person to enter the country. Once admitted to the country, the person is granted an immigration status and their visa becomes insignificant during their stay.

Immigration status, on the other hand, refers to the set of responsibilities an individual has to the US government. In immigration terms, status is the legal category in which a person is authorized to enter the United States, usually with one-letter nomenclature (eg, B-1, F-2, H-1B). Each status category has different grant requirements, as well as different regulations, responsibilities, and benefits. Once a person enters the United States and his or her immigration status is determined, it becomes essential to adhere to its rules. Violation of the terms of immigration status implies the loss of status with consequences that can be extremely severe, such as cancellation of the visa.

One way of classifying immigration status is to divide it into three broad categories – non-immigration status, immigration status and dual intent immigration status.

The vast majority of immigration categories fall into the non-immigration status group. Individuals who come to the United States with non-immigration status should have the intention of leaving the country upon completion of the activity that gave rise to the visit. In this category are, for example, tourist and student status (B and F). On the other hand, in the immigration status category, individuals who intend to reside permanently in the United States, such as green card holders, are included. Finally, some statuses allow for hybrid intent, for example H-1B which is technically a non-immigration status but individuals in that status are not penalized for intending to remain in the United States.

Therefore, while it is possible to have multiple visas in one passport, only a single immigration status is allowed. In the same sense, the consequences of expiry of the visa term and expiry of the status term are completely opposite. The first is irrelevant to your stay in the country, while the second can lead to a deportation process.

Once admitted to the United States, the individual must take care to maintain his or her status. In the event that he remains in the country for longer than the time allowed or violates the terms of his status, that human being will never be illegal, but will be without status and must bear the consequences of this situation, which is sometimes irreversible.

The International Entrepreneur parole program, IE, is once again a viable option to enter the United States for entrepreneurs looking to establish or develop start-up entities with great growth potential in the United States. country.

Such a move is in perfect alignment with President Biden’s Executive Order 14012 aimed at restoring confidence in the US immigration system and enhancing integration and inclusion for New Americans. The Executive Order recognizes the strength and importance of immigrants in the American economy and seeks to ensure that the country’s domestic laws and policies promote the integration, inclusion and citizenship of these individuals, more specifically, the measure stipulates that the Secretary of the Department of Homeland Security (DHS) ) “identify any agency action that fails to promote access to the legal immigration system.”

The IE program, effective in July 2017, allowed the DHS to use its prerogative to grant parole to authorize a period of stay in the United States, determined on a case-by-case basis, for foreigners who demonstrated that their arrival would bring significant public benefit through its enterprise’s potential for accelerated growth and job creation. However, before the implementation of the program, DHS published a final decision to extend its term and then filed a request to revoke the rules that authorize it. At the time, in December 2017, an order from a federal court ordered USCIS to receive and process parole requests for foreign entrepreneurs pursuant to the final decision on its implementation. However, with the IE repeal proposal pending, a certain degree of uncertainty and insecurity hovered over the effectiveness of granting a parole through this program.

On May 11 of this year, the decision of the DHS to withdraw the request to revoke the IE program was published, giving start-up entrepreneurs security in the feasibility of relying on the program to come and develop their start-ups in the United States. Through IE, parole can be granted to up to three entrepreneurs per start-up, as well as to their families (spouse and children). Entrepreneurs who obtain parole will be eligible to work only in their start-ups; their spouses may apply for a work permit in the United States, but this benefit does not extend to their children.

To be eligible, entrepreneurs seeking parole must meet a series of requirements established by the USCIS and be able to document the same, in addition to demonstrating that they will bring a significant public benefit to the United States.

In the words of Ms. Tracy Renaund, USCIS Acting Director, “The International Entrepreneur Parole program is in line with the nation’s spirit of welcoming entrepreneurs and USCIS encourages those who are eligible to take advantage of the program.”

When considering immigration possibilities to the United States, consult an immigration attorney licensed in the country.

*This article is for informational purposes and does not constitute legal advice or advice.