Part 4

Published By:  M Keil Hackley, Esquire

This blog, as captioned, is Part 4 of my ongoing series on how to address the more than 11 million undocumented immigrants currently living in the United States without amnesty and without an unnecessary mass deportation plan. To recap for those who are just now tuning in, Part 1 introduced in general terms what I believe is the core solution to immigration reform. That is, a “temporary repeal” or a precisely carved out “exception” to the 3/10/permanent bars which statutorily preclude a foreign national who has overstayed his or her nonimmigrant Visa (or entered the United States by eluding immigration inspection) from normalizing their status by seeking readmission for either 3 years, 10 years, or permanently, depending on how much unlawful presence the individual accrued while residing in the United States.

Following the fundamental concept initially set out in the first blog, Part 2 went on to elaborate by example exactly what the statutory 3/10/permanent bars are and how and when they are triggered. Part 3 began to brush the complex surface by drilling down on a few of the many moving parts of the overall proposal in a genuine attempt to demonstrate how immigration reform without amnesty or mass deportation would actually work.

Since publishing those ideas I’ve received considerable feedback, mostly good, encouraging me to continue on with my writings. The standout comments go to the questions posed in Part 2 that each successive blog is designed to address, all the while knowing that ultimate answers will come only after scholarly debates take place amongst a think tank of immigration experts. It’s almost too obvious to state, but I’ll do it nonetheless: One person, alone, cannot and should not be the sole solution provider. As I listen intently to readers’ input, it is apparent that one question in particular deserves immediate attention. Thus, I’m jumping the line of issues previously posed and will direct this blog to what the overwhelming number of readers want to know—Assuming the proposal becomes law, will those individuals who depart the United States and return with the appropriate employment-based visa be eligible to apply for lawful permanent resident status (“green card”), and if so, when?

The short answer to the question is yes, provided that they are otherwise admissible under the immigration laws. Yet, before jumping into the thick of things I reiterate that my immigration reform proposal contemplates individuals who are (1) residing in the U.S. at the time of enactment (2) subject to one of the three bars, (3) depart the United States with an approved visa petition  and (4) seek readmission to the United States upon issuance of the appropriate nonimmigrant employment-based visa. The nonimmigrant visa category upon which the returning individual seeks readmission may be any employment nonimmigrant visa such as an H-1B, H-2, E-1, E-2, E-3 O-1, O-2, P-1, Q-1, R-1, or even a newly enacted visa category such as the W, and in more limited circumstances the L-1A/B classifications. Qualifying dependents are eligible for the companion visa classification so they may also seek readmission to the United States. Once   in the United States, the now legally present nonimmigrant may change employers pursuant to current regulations and rules. Procedural details, the electronic exit/entry tracking system, and more need to be created and implemented, and I’ll get to those important topics later. For now, I’m circling back to the central topic of this blog to discuss the much debated issue of whether these individuals will be green card eligible, and if so, when.

Under the current law, there are 5 immigrant employment-based green card categories. I’m not proposing changes to these categories at this time. Neither am I suggesting that the numerical limits to any of the 5 categories be raised. What I am proposing is that once the newly admitted nonimmigrant is in the United States and working pursuant to the terms and conditions of his or her employment-based nonimmigrant visa, the employer may sponsor that individual for a green card pursuant to the appropriate immigrant visa category. Similarly, the individual may request an adjustment of status to that of a lawful permanent resident as provided under existing law.

Take the case of an inventor who is subject to the 3 year bar. If the inventor’s achievements rise to the level of the O-1A (extraordinary ability) visa category and his nonimmigrant visa petition is approved by the USCIS, the inventor may depart the United States, and after having been issued the O-1A visa by the U.S. Embassy abroad, he is legally readmitted to the United States and commences employment pursuant to the terms of the sponsorship. The O-1A nonimmigrant and his or her qualifying relatives may travel outside the United States and return without incident should they continue to remain admissible. Later, should the O-1A nonimmigrant wish to seek adjustment of status in the United States, he may file the appropriate petition and applications with the USCIS and adjust his status to that of a lawful permanent resident assuming he is otherwise eligible. Qualifying dependents may do the same. Based on the statutory preference system, it is likely that the intending immigrant will fall under the first preference category for individuals of extraordinary ability. (Note: The first preference category is not limited to individuals of extraordinary ability.) Since a visa number is currently available for individuals falling into the first preference extraordinary ability category, the inventor will likely proceed quickly through the immigration system and receive a green card with relative speed.

Let’s change the facts of the above example to that of a landscaper, who would likely seek readmission pursuant to a newly enacted W visa. Like the example with the inventor, the landscaper, too, wishes to move forward in the system and pursue a green card. Unlike the case of the inventor, the landscaper will likely fall under the third preference category, under which a skilled worker would apply. (Note: The third preference is not limited to skilled workers.) However, and since the third preference category is oversubscribed, the landscaper will have many years to wait until an immigrant (“green card”) number becomes available to him. In the meantime, the landscaper may work legally in the United States pursuant to the terms of his W visa, travel outside the United States, and wait until a green card number becomes available.

While these two examples add some context to how I see the proposal unfolding, there are many questions to be asked and answered before the proposal could be considered realistic. Just a few of the questions are: Will W visa holders be able to extend their visas, and if so, for how long? What about children who may turn 21 years of age while immigrants wait for green cards to become available in their category? Will work experience attained by unauthorized employment be countable toward any work experience requirements ? What happens if the nonimmigrant visa holder becomes subject to the 3/10 year bars again by overstaying?

These and many more tough questions need to be asked and unequivocally answered. Again, I maintain my proposal, or a variation of it, will work and can work if put before a think tank of immigration scholars to discuss, debate and dissect. Please continue to follow this series of blogs, and just as importantly, please give me your constructive feedback. Coming up with a proposal that will finally be accepted and enacted requires teamwork. Let me hear from you at [email protected].

M. Keil Hackley is the Founding and Senior Partner of Hackley & Robertson, P.A., a U.S. immigration law firm dedicated to helping individuals and companies navigate U.S. immigration law. With a team that includes former U.S. Immigration and Naturalization Service (INS) attorneys and investigators, Hackley & Robertson is skilled and focused on helping clients with their immigration law cases. While we are located in South Florida, we handle immigration matters throughout the United States.

The information contained in the blog does not constitute legal advice or any other advice and should not be relied upon as such. Learn more about the immigration law firm Hackley & Robertson, P.A. at www.HackleyRobertson.com. We invite you to follow Hackley & Robertson, P.A. on Twitter @ImmigrationPros and me @Keil Hackley

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