After all, who are the Essential Workers?

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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.


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