The U.S. Citizenship Act of 2021 (USCA) was introduced in the House by Representative Sánchez (D-CA) introduced the in the House “to provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes.” An identical bill was introduced in the Senate by Senator Menendez (D-NJ). The USCA as written will create pathways to citizenship for undocumented immigrants, expand the number of available visas, and create more access for highly skilled workers. The Act would also expand penalties for immigrants who have committed crimes but creates additional waivers for these criminal consequences.
Pathways to Citizenship
The U.S. Citizenship Act of 2021 offers an eight-year path to citizenship for many undocumented immigrants in the United States, including certain Dreamers, TPS holders and immigrant farmworkers. Individuals must have been present in the U.S. on or before January 1, 2021, and meet other requirements to become eligible for temporary legal status. After five years of continuous residence in the U.S., these individuals would be able to apply for permanent residence (green card)card holders under this category could naturalize as U.S. citizens after another three years in permanent resident status. This process may also be expedited for certain categories of immigrants
In family-based immigration, families are often separated while waiting for an immigrant visa. There are often issues with applying for a visitor visa while waiting for visa approval. The Act seeks to clear backlogs, increase per-country visa caps, and generally reduce the wait times for families. Spouses and children of lawful permanent residents would be placed in the same category as family members of U.S. citizens and would become exempt from current numerical caps. The bill would also allow immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.
The USCA also seeks to restore dignity to immigrant populations by replacing the word “alien” with “noncitizen” in al legal references.
The bill also seeks to reduce wait times for some of the employment-based visa backlog by capturing unused visas and eliminating per-country visa caps. The U.S. Citizenship Act of 2021 would even make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States and improve access to green cards for workers in lower-wage sectors. The Bill seeks to protect workers from exploitation and improves the employment verification process. The USCA increase the number of employment-based green cards available each year from 140,000 to 170,00 and add left-over visas from FY 1992 through FY 2020 into the mix and eliminate per country caps altogether beginning in FY 2022. The Act exempts U.S. doctoral STEM graduates from the numerical limitations and create a pilot program for regional economic development that would allow for an additional 10,000 immigrants per year based on localized economic development strategies.
The USCA also includes key provisions regarding nonimmigrant, temporary work visas. It would authorize employment for all H-4 spouses and children, one-year extensions of work authorization for those in F-1, H-1B, L, and O status if their immigrant visa petition or labor certification authorization has been pending for more than one year, and DHS in conjunction with DOL to prioritize the distribution of H-1B visas based upon the offered wage. The Act exempts F-1 students at institutions of higher education from dual intent restrictions.
The USCA authorizes additional funding for technology that improves the speed of screening at ports of entry. Enhanced technology could mean that border officials have better tools to identify contraband such as narcotics. The Act goes on to fund additional training and education for Customs and Border Protection (CBP) personnel..
Immigration Penalties for Criminal Offenses
Current immigration law already contains harsh criminal bars to receiving status. The USCA
adds additional disqualifying grounds. Such disqualifying grounds include:
Have a conviction described in INA § 212(a)(2), which includes, among others:
Any crime involving moral turpitude (a vague category that has no statutory definition and which encompasses such minor criminal conduct as shoplifting);
Any controlled substance conviction;
Any two or more convictions where the person received an aggregate sentence of 5 years of imprisonment;
Any controlled substance “trafficking” conviction, a category that encompasses crimes involving sale and distribution of controlled substances;
Have any felony conviction (except state law status-related felonies);
Have three or more misdemeanors (except simple possession of marijuana, any marijuana offense that would not now be prosecutable under the state’s law, non-violent civil disobedience, and minor traffic offenses); or
Be deemed a security threat.
Luckily, the USCA permits a humanitarian waiver of the crime involving moral turpitude ground, the controlled substance-related grounds, and certain other non-criminal grounds.
It also permits a waiver of the felony ground and the multiple convictions ground provided
the felony is not an aggravated felony under INA 101(a)(43)(A) (murder, rape, or sexual abuse of a minor); and
the person has no convictions during the 10-year period preceding the application.
Finally, the USCA permits a waiver of one misdemeanor if the person has no convictions for
the five years preceding the application; or two misdemeanors if the person has no convictions for the ten years preceding the application.
Redefinition of “conviction” for immigration purposes
The USCA redefines conviction to exclude these rehabilitative forms of relief, bringing the
immigration definition of “conviction” more in line with the definition in the criminal legal
Restoration of Judicial Recommendations Against Removal (JRADs)
Prior to 1990, state and federal judges in criminal cases had the ability to issue a Judicial
Recommendation Against Removal (JRAD). The JRAD precluded immigration authorities from deporting the person on the basis of that specific conviction, even if it otherwise would have constituted a ground of removal. The USCA restores JRADs, an important tool for mitigating the punitive consequences of convictions under current immigration law.
Outside the legalization program, the USCA restores discretion to the Department of Homeland Security (DHS) and immigration judges to waive one or more ground of inadmissibility (excluding security grounds) and to waive one or more grounds of deportability (excluding the security-related ground and the murder, rape, and sexual abuse of a minor aggravated felony ground). This waiver significantly narrows the grounds of mandatory deportation and mandatory detention.
Presumption of release and barrier to removal for U & T Visa applicants
The USCA would provide people who have applied for a U Visa or a T Visa or for relief under VAWA a rebuttable presumption of release from detention, and would prohibit their removal while an application is pending.
Petty offense exception
The USCA adds a second petty offense exception to the crime involving moral turpitude ground of inadmissibility.
Repeal of the 3-year, 10-year, and permanent bars
Under current law, anyone who has spent time in the United States without status and who leaves the United States cannot return without waiting three years if they spent 6 months to a year without status and ten years if they spent a year or more without status. People who spent over a year in the United States without status and who left and then returned without permission face a permanent bar to return if they ever leave. These bars trap people in the United States and also prevent people who are eligible for visas now from receiving them. The USCA repeals all three bars. However, it still imposes bars to the return of people who have been ordered removed. The bars vary in length depending on the circumstances, from 5 years to permanent. It also provides for a waiver of these bars.
The USCA would increase the use of the Family Case Management Program and other
community-based programs that function as alternatives to detention. It does not, however, end mandatory detention, end the use of private prisons, or end family detention.
The USCA provides appointed counsel to represent “vulnerable” immigrants in their removal proceedings, including children; people with a disability; victims of abuse, torture, and violence; all pregnant or lactating women; and all parents of U.S. citizen children. Currently, there is no recognized right to government appointed counsel, and immigrants who cannot afford counsel must represent themselves despite the fact that ICE has a specialist attorney representing its interests in every removal proceeding.
The USCA would restore immigration judges’ discretion and permit them to grant relief
and/or bond in compelling cases where relief or bond were previously barred by mandatory
deportation and mandatory detention provisions.
The USCA would require Immigration and Customs Enforcement (ICE) to give any
immigrant going through removal proceedings a copy of the evidence that ICE has and plans to use against them. Currently, in most immigration courts, an immigrant must file a Freedom of Information Act request, which can take months to be produced, to see such evidence.
The USCA would instruct the Department of Justice to hire additional immigration judges
and members of the Board of Immigration Appeals and ensure those hired had experience in immigration law and received training on providing fair hearings. The USCA would also instruct DOJ to hire an equal number of immigration judges and Board members from the private, nonprofit, and academic sectors. Currently, the vast majority of immigration judges are former ICE attorneys.
The USCA would encourage electronic case management and e-filing reforms.Currently, almost all immigration court documents must be filed in paper, hard copy form.
What does this mean for you?
None of these changes are law yet so they do not apply to your current case. Even if the bill passes, many of the provisions may change. You can join local organizations that support immigration populations and are working to see the success of the bill. You may also contact your local congressional representatives and ask them to support the bill. You can find your representative here. and your Senator here.
You can find the language of the bill here: