The US Citizenship Act of 2021: What's Inside and Who Could be Eligible for Immigration Relief
March 11, 2021
On January 20, 2021, President Biden announced the US Citizenship Act of 2021 memorializing his commitment to modernize the US immigration system. On February 18, 2021, Senator Bob Menendez and Congresswoman Linda Sanchez introduced the bill to the Senate and House (respectively). If passed, it would create the largest legalization program in US history.
The act would introduce the following legalization programs, that would make the following groups of immigrants eligible for immigration relief:
- Approximately 11 million undocumented immigrants and their spouses and children would be eligible for Lawful Prospective Immigrant (LPI) status if they were physically present in the United States on or before January 1, 2021. With LPI status, they would be able to remain in the United States lawfully, eligible for work authorization and social security cards, and may travel outside of the United States and be readmitted. They cannot remain outside of the United States for more than 180 days per year. People with LPI status would be able to renew their status every six years. After five years of LPI status, they would also be eligible for lawful permanent residence (LPR) status if they pass a criminal and national security background check and pay their taxes.
- Immigrants who engaged in “essential critical labor or services” during the COVID-19 public health emergency, H-2A non-immigrants (temporary agricultural workers), and TPS recipients would be eligible for LPI status.
- Noncitizens who entered the United States as children, including DACA recipients would be eligible for lawful permanent residence. DACA recipients who meet the requirements for renewal would be eligible for a streamlined adjustment of status. Noncitizens who entered the United States as children would be eligible if they:
- Were younger than 18 years old on the date they initially entered the US;
- Earned a high school diploma or GED;
- Registered for the Selective Service if they are a male over the age of 18; and
- Did any of the following:
- Obtained a degree from an institution of higher education or completed at least two years of a program in the US leading to a bachelor’s degree or higher or a postsecondary credential;
- Served in the Uniformed Services for at least two years and, if discharged, received an honorable discharge; or
- Demonstrate earned income for periods totaling at least three years.
- Nationals of certain countries designated for Temporary Protected Status (TPS) or Deferred Enforcement Departure (DED) who have been continuously physically present in the United States since January 1, 2017 and had or were eligible for TPS or DED on January 1, 2017 would be eligible for permanent residence status. Their spouses and children would also be eligible for permanent residence. DED provides temporary protection against deportation and work authorization to nationals of designated countries authorized by the president at his discretion. TPS is available to nationals of designated countries, who cannot return home safely due to armed conflict, environmental disaster, or other extraordinary conditions. The bill also clarified that TPS recipients would be considered inspected and admitted into the United States. Currently, federal circuit courts are split on the issue of whether a grant of TPS is considered an admission to the United States.
- Workers who performed agricultural labor or services for at least 2,300 hours or 400 workdays, including seasonal or temporary work, during the five-year period before the date they apply for a green card would be eligible for LPR status. Their spouses and children would also be eligible for permanent residence as derivatives.
- Permanent LGBTQ partners of US citizens and LPRs that cannot get married in their jurisdictions would be eligible for LPR status. Permanent partners would be considered equal to a married couple. Children of immigrant permanent partners would also be eligible for immigration relief. Under the Act, a permanent partner is defined as an individual 18 years or older who is:
- In a committed, intimate relationship with another individual 18 years or older where both parties intend a lifelong commitment;
- Financially interdependent with that individual (may be waived);
- Not married or in a permanent partnership with another individual;
- Unable to be married in the jurisdiction of either partner’s domicile; and
- Not a first-, second-, or third-degree blood relative of the other individual.
- A Special Immigrant Visa (SIV) status program for Syrians who worked for the United States government in Syria would be introduced. The program would grant up to 5,000 special immigrant visas to certain Syrian nationals employed by or on behalf of the US government for at least one year beginning on January 1, 2014. These Syrian special immigrants would also receive the same resettlement assistance as refugees.
- Surviving spouses and children of US government employees abroad who performed faithful services for a total of at least 15 years or were killed in the line of duty would be eligible for SIV status.
The Act would expand and reform legal immigration:
- The residence requirement for naturalization would be reduced from 5 years to 3 years for all lawful permanent residents.
- The one-year deadline for filing asylum applications in the United States would be eliminated and the Act would provide funding to reduce asylum application backlogs. It would also allow asylum applicants to file a motion to reopen their case within two years after the Act is passed if they were:
- Denied asylum solely based on failure to meet the one-year application deadline;
- Granted withholding of removal;
- Have not obtained LPR status;
- Not subject to the safe third country exception or another bar to asylum; and
- Not denied asylum as a matter of discretion.
- The act would expand eligibility for V visas, which allow certain immigrants to join their petitioning family members in the United States while they wait for their visas to be processed. V visas would be available to any noncitizens who are beneficiaries of approved family-based visa petitions as well as approved applications for LPI status. Currently, V visas are only available to spouses and unmarried children or step-children under 21 years of age of permanent residents if they: (1) filed an I-130 petition on or before December 21, 2000; (2) have been waiting at least three years since the petition was filed; and (3) an immigrant visa is not available or the application or petition is still pending. Under the US Citizenship Act, these requirements would no longer apply. V visa holders would also be eligible for employment authorization.
- The definition of “conviction” under the Immigration and Nationality Act (INA) would be modified. Any adjudication or judgement of guilt that is dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated would not be considered a conviction for immigration purposes. Currently, only an adjudication or judgement that is vacated would not be considered a conviction. The Act also provides for judicial recommendation against removal. Grounds for inadmissibility and deportability based on criminal convictions would not apply if the sentencing court issues a recommendation that the noncitizen not be removed at the time of sentencing or within 180 days afterward.
- A humanitarian, family unity, and public interest waiver would be introduced that would allow the Department of Homeland Security (DHS) Secretary or Attorney General to waive one or more grounds of inadmissibility for humanitarian purposes, to ensure family unity, or if a waiver is otherwise in the public interest. For this type of waiver, the DHS Secretary or Attorney General would take the following factors into consideration:
- The severity of the underlying circumstances, conduct, or violation;
- The duration of the noncitizen’s residence in the US;
- Evidence of rehabilitation; and
- How the denial of the waiver or removal of the noncitizen would affect their family members who are US citizens or lawful permanent residents.
- The number of diversity visas would increase from 55,000 to 80,000 and the cap on U visas for victims of criminal activity would be raised from 10,000 to 30,000.
- Dependents of H-1B visa holders (highly skilled workers) would be eligible for work authorization and their children would be protected from aging out of the system and being forced to leave the United States.
The Act would reduce green card and court backlogs and promote immigrant integration:
- The act would reform family- and employment-based immigration backlogs by recapturing millions of previously unused visas to reduce green card backlogs and eliminating per-country visa caps. Unused family- and employment-based immigrant visas from fiscal years 1992 through 2020 would be added to the annual ceiling for admission of family-based applicants. The base number for the calculation of the annual ceiling for employment-based immigrants would increase from 140,000 to 170,000. Per-country caps for family- and employment-based immigrants would increase from 7 percent of the worldwide total to 20 percent. The act would also remove restrictions imposed by the visa bulletin on spouses and children of LPRs. The visa bulletin limits certain immigrants based on the type of petition they filed and their country of origin. Each month the Department of State (DOS) publishes the visa bulletin to indicate which immigrant visas are available to those immigrants based on the priority date on their petition receipt notice.
- The act seeks to reduce immigration court backlogs, expand training for immigration judges, and improve technology for immigration courts. The Act directs the Attorney General to hire at least 55 immigration judges per year from 2021 – 2024 and 23 Board of Immigration Appeals (BIA) staff attorneys per year from 2021 – 2023. It also directs the EOIR Director to modernize case management, video-teleconferencing, digital audio recording, and related electronic systems including electronic filing.
- Funding for legal orientation programs and counsel for children and vulnerable individuals would be provided.
- One-year extensions of nonimmigrant visas would be provided for those previously granted F (students), H-1B (highly skilled workers), L (intracompany transferees), or O (noncitizens of extraordinary ability) visas, if their visa petitions or labor certification applications have been pending for more than one year.
- Foreign graduates of US universities with advanced STEM degrees would not be subject to numerical visa limits.
- DHS and the Department of Labor (DOL) would establish a commission of labor, employer, and civil rights organizations to make recommendations to improve the employment verification process.
- Immigrant workers who suffer serious labor violations would have greater access to U visa relief and workers who are victims of workplace retaliation would be protected from deportation to allow labor agencies to interview them and investigate the situation.
- A pilot program for regional economic development visas would be developed. The program would allow admission of up to 10,000 additional immigrants per year whose employment is essential to economic development strategies in local communities.
- The United States Citizenship and Integration Foundation and other immigrant integration initiatives would be established. The purpose of the foundation would be to promote expansion of citizenship preparation assistance for LPRs and naturalization applicants. The act would also provide grants to promote English language as well as access to education and workforce programs, and provide grants to nonprofit organizations to assist individuals who are eligible for LPI or LPR status.
The Act aims to address the root causes of migration and provides programs for immigrants from Central America. It would:
- Expand refugee and asylum processing in the Western Hemisphere. The following would be provided to support and strengthen processing and resettlement capacity:
- Technical assistance to identify, process, and adjudicate refugee claims, including an increase in the number of refugee and asylum officers;
- Established designated processing centers to register, screen, and process refugees or other eligible individuals to resettle or relocate them to the US or other countries;
- Secure locations to facilitate movement of individuals and families seeking protection;
- Improved national refugee and asylum registration systems; and
- Capacity to conduct best interest determinations for unaccompanied children.
- Direct the Secretary of State to implement a four-year strategy to advance reforms in Central American countries and address key factors driving families, unaccompanied minors, and other individuals to migrate. The strategy must include efforts to:
- Strengthen governance and access to justice in Central American countries;
- Combat gang violence, organized crime, and human trafficking organizations and networks;
- Promote fundamental human rights and hold government actors accountable for violations;
- Enhance the capability of Central American governments to protect and provide for vulnerable populations;
- Address the underlying causes of poverty, inequality, and lack of opportunities for economic growth in Central America; and
- Prevent and respond to frequent sexual, gender-based, and domestic violence in Central America.
- Implement information campaigns in El Salvador, Guatemala, Honduras, and other Central American countries to warn of the potential dangers of traveling through irregular migration routes to the United States and provide accurate information about US immigration law and policy.
- Establish the Central American Refugee Program that would allow nationals of El Salvador, Honduras, Guatemala, or any other Central American countries designated by the Secretary of State to apply for refugee resettlement. The program would also allow applicants to be referred to another country to process their refugee claim there if that country agrees under a bilateral agreement with the United States. These bilateral agreements would be limited to countries with a demonstrated capacity to accept and adjudicate applications for protection and refugee resettlement.
- Establish a new Central American Minors (CAM) Program. Under the Act, the DHS Secretary must convert applications filed under the prior CAM program, which was established on December 1, 2014 and terminated on August 16, 2017, that were not adjudicated before January 31, 2018 to petitions under the new program. The DHS Secretary would also be required to make final determinations on those petitions no later than 180 days after enactment. Under the new program the DHS Secretary can grant special immigrant status to Central American children who are:
- Nationals of El Salvador, Honduras, Guatemala, or any other Central American country deemed appropriate by the DHS Secretary;
- A child of an individual who is lawfully present in the US; and
- Admissible to the United States.
- Establishes the Central American Family Reunification Parole Program. This program would authorize the DHS Secretary to grant parole to legally enter the United States to Central American noncitizens who are:
- Nationals of El Salvador, Guatemala, or any other Central American country deemed appropriate by the DHS Secretary;
- The beneficiary of an approved family-based visa petition; and
- An applicant for an immigrant visa that is not immediately available.
The Act aims to improve border security and promote humane treatment of immigrants at the border and in detention. It would:
- Supplement existing border resources with technology and infrastructure to expedite screening, enhance the ability to process asylum seekers, and detect narcotics and other contraband.
- Provide funding for training and continuing education for Border Patrol agents to promote safety and professionalism.
- Create the DHS Office of Professional Responsibility to investigate criminal and administrative misconduct by agents.
- Establish humanitarian and medical standards for individuals in US Customs and Border Protection (CBP) custody. These standards require CBP to provide the following for individuals in their custody: (1) medical care; (2) water, sanitation, and hygiene; (3) food and nutrition; (4) clothing and shelter; (5) quiet sleeping quarters; (6) information regarding legal rights and available services; and (7) freedom to practice their religion.
- Direct the DHS Secretary to establish programs that provide alternatives to detention.
- Provide guidelines for child welfare at the border. These guidelines would adhere to the principle of the best interest of the child and require:
- Mandatory training for DHS personnel who have contact with children;
- Availability of qualified child welfare and licensed medical professionals;
- Systems to identify and report child abuse or neglect;
- Prohibit the DHS Secretary from removing a child from their parent or legal guardian for purposes of deterring migration and promoting compliance with immigration laws;
- Arrangements for unannounced visits and inspections by the Office of the Inspector General, DHS, NGOs, and state/local child welfare agencies; and
- Preservation of all records associated with children in DHS custody.
March 11, 2021