Registered Provisional Immigrant Status

Immigration reform was recently debated in the United States House of Representatives but failed to gain Congressional support.  There were major provisions that were expected to provide legalization for millions of undocumented foreign nationals.

Please realize that proposed immigration reform in the future may change the below provisions in significant ways.  Thus, none of the information provided should be relied upon to determine your future immigration strategy without the advice of a qualified immigration lawyer.  I will periodically update this page, courtesy of updates from the American Immigration Lawyers Association, as future bill moves through Congress.  Please check back regularly for further details.

Title II – Immigrant Visas
Subtitle A—Registration and Adjustment of Registered Provisional Immigrants

SEC. 2101. REGISTERED PROVISIONAL IMMIGRANT STATUS. (pg. 942)

Sec. 2101(a): Authorization. Creates new INA §245B to allow certain noncitizens who are currently unlawfully present and who entered the U.S. before December 31, 2011, to adjust status to that of Registered Provisional Immigrant (RPI).

§245B(a) (pg. 943): Authorizes DHS to grant RPI status to individuals who clear national security and background checks, meet certain eligibility criteria, apply for RPI status within the application period, and pay applicable penalties and fees.

§245B(b) (pg. 943): Establishes the eligibility requirements (preponderance standard) for registration as an RPI:

• §245B(b)(2): Physical Presence.
  • Must be physically present on the date application for RPI is submitted;
  • Must have been physically present on or before December 31, 2011, and maintain continuous physical presence from December 31, 2011, until RPI status is granted;
  • An alien who is absent from the U.S. without authorization after the date of enactment does not meet the physical presence requirement, except that a departure after December 31, 2011, may be excused if brief, casual and innocent.

§245B(b)(3)(A)(i): Criminal Bars.

• Any felony (other than state or local status-based or immigration offenses);
• Aggravated felony under INA §101(a)(43);
• Three or more misdemeanors (other than minor traffic offenses or state/local status based or immigration offenses) where conviction occurred on different dates. May be waived for humanitarian purposes to ensure family unity, or if otherwise in the public interest.
• Foreign offenses (except purely political offenses) that would render the person inadmissible or deportable if committed in the U.S., with certain exceptions.
• Unlawful voting.

§245B(b)(3)(A)(ii): Admissibility Bars. Applicant must be admissible under INA §212(a)
except:

• The following inadmissibility grounds do not apply: §212(a)(4) (public charge); §212(a)(5) (labor certification requirements); §212(a)(7) (documentation requirements); and §212(a)(9)(B) (3/10 year unlawful presence bars).
• The following inadmissibility grounds do not apply unless they are based on the act of unlawfully entering the U.S. after the date of enactment: §212(a)(6)(A) (present without admission or parole); §212(a)(6)(C) (misrepresentation); §212(a)(6)(D) (stowaways); §212(a)(6)(F) (subject to civil penalty); §212(a)(6)(G) (student visa abusers); and §212(a)(9)(C) (unlawful presence after previous immigration violation); and §212(a)(10)(B) (guardian of inadmissible alien).
• The following inadmissibility grounds do not apply unless the relevant conduct began on or after the date on which the alien files the RPI application: §212(a)(6)(B) (failure to attend removal proceedings); §212(a)(9)(A) (certain aliens previously removed).

§245B(b)(3)(A)(iii):Terrorism Bars. Applicant is ineligible if DHS knows or has reasonable grounds to believe he or she is engaged in or is likely to engage in terrorism.

§245B(b)(3)(A)(iv): Status Bars. Applicant cannot have been an LPR, refugee, asylee, or lawfully present nonimmigrant (with certain exceptions) notwithstanding any unauthorized employment or status violations, on the date the bill was introduced in the Senate (April 16, 2013).

§245B(b)(3)(B):Waiver. Provides for a waiver of the three or more misdemeanor ineligibility ground for humanitarian purposes to ensure family unity, or if otherwise in the public interest.  Also waives any provision of INA §212(a) that is not listed in the exemptions except for:

• §212(a)(2)(B) (multiple criminal convictions); §212(a)(2)(C) (drug trafficking); (D)(ii) (procurers of prostitutes); §212(a)(2)(E) (criminal activity/immunity), §212(a)(2)(G) (violators of religious freedom); §212(a)(2)(H) (human trafficking), or §212(a)(2)(I) (money laundering);
• §212(a)(3) (national security);
• §212(a)(10)(A) (polygamy); §212(a)(10)(C) (child abductors); §212(a)(10)(D) (unlawful voting); §212(a)(10)(E) (renouncing citizenship to avoid taxes); and
• §212(a)(6)(C)(i) (where misrepresentation relates to RPI application).

§245B(b)(3)(C): Conviction Explained. For purposes of criminal ineligibilities, the term “conviction” does not include a judgment that has been expunged or set aside.

§245B(b)(3)(D): Rule of Construction. Provides that nothing in the ineligibility paragraph should be construed to require DHS to initiate removal proceedings.

§245B(b)(4): Applicability of Other Provisions. INA §§208(d)(6) (frivolous asylum applications) and 240B(d) (failure to depart under voluntary departure) do not apply to RPI applicants.

§245B(b)(5): Dependent Spouses and Children. The spouse and child of an RPI may receive RPI status provided they:

• Are physically present in the U.S. on the date RPI status is granted and on or before December 31, 2012;Where relationship between RPI and dependent terminates, due to death or divorce, or where the spouse or child has been battered or subjected to extreme cruelty by the RPI (regardless of whether relationship terminates), the spouse or child may apply for RPI status.
  • Maintains continuous presence from December 31, 2012, until the RPI is granted status, except for brief, casual and innocent departures, whether or not authorized by DHS;
  • Meet all of the eligibility requirements for RPIs other than the physical presence requirements that are tied to December 31, 2011.
• Where the RPI’s application is terminated or revoked, dependents may apply for RPI status independent of the RPI relative. Application period does not apply.

§245B(c)(1)(4) (pg. 951): Application Procedures, Taxes, Form.

• Provides that applicants for RPI or RPI dependent status must submit a completed application form during the application period in accordance with the final rule;
• Requires satisfaction of federal tax liabilities before filing.
• Initial application period is one year beginning on the date that the final rule is published in the Federal Register. Application period may be extended 18 months.
• Application form will collect required information and the information may be used for the purpose of understanding immigration trends and will allow families to submit a single application. Interview may be required.

§245B(c)(5) (pg. 955): Apprehension Before or During Application Period. If prima facie eligible individual is apprehended between date of enactment and end of application period, DHS must provide reasonable opportunity to apply and may not remove the individual until a final decision on the RPI application is made.

§245B(c)(6) (pg. 955): Eligibility After Departure. An alien who departed the U.S. under an order of removal or voluntary departure, who is outside the U.S., or who re-entered illegally after December 31, 2011, without obtaining permission to reapply for admission, is ineligible for RPI status. May be waived if the alien is: (i) the spouse or child of a USC or LPR; (ii) the parent of a USC or LPR; (iii) was younger than 16 upon initial entry and earned a high school diploma or GED in the U.S.; or (4) was younger than 16 upon initial entry, is 16 or older on the date of filing the RPI application, and was physically present for an aggregate of three years within the six-year period preceding the date of enactment.

§245B(c)(6) (pg. 959): Adds (D) that requires the Secretary to determine whether a waiver-eligible RPI applicant has a conviction for a criminal offense, to identify each victim of the criminal offense, to provide each victim with notice that the alien is being considered for a waiver, to consult with each victim to determine whether the alien should be granted a waiver, and notify each victim if a waiver is actually granted.

§245B(c)(7) (pg. 961): Suspension of Removal During Application Period. Provides that RPIs may not be detained or removed unless RPI is or became ineligible or RPI status revoked.

• In Removal Proceedings. If prima facie eligible individual in removal proceedings is identified by DHS between the date of enactment and end of application period, DHS must provide reasonable opportunity to apply. Upon motion by either party (with noncitizen’s consent), EOIR shall terminate to provide opportunity to apply. If EOIR identifies a prima facie eligible individual in removal proceedings, EOIR must notify DHS and if DHS does not dispute eligibility within seven days, EOIR shall terminate (with noncitizen’s consent) to provide opportunity to apply.
• Prior Removal Order. Noncitizens in the U.S. with prior removal or voluntary departure orders may apply for RPI status, notwithstanding the order or reinstatement under INA §241(a)(5). If granted RPI status, RPI shall move to reopen the prior order and the motion shall be granted unless there is clear and convincing evidence of ineligibility.
• Period While RPI Application Is Pending. RPI applicant:
  • May receive advance parole if urgent humanitarian circumstances compel such travel;
  • May not be detained or removed unless DHS finds the alien is, or has become, ineligible for RPI status for criminal or national security reasons;
  • Will not accrue unlawful presence for purposes of 3/10-year bars; and
  • Will not be considered unauthorized to work.

Employer Protections. Employer who knows that an employee is an RPI applicant or will apply when the application period commences is not in violation of employer sanctions laws.

Effect of Departure. Individuals with final orders who depart under advance parole or RPI status do not effectuate removal under INA §101(g).

§245B(c)(8) (pg. 967): Security and Law Enforcement Clearances. Sets forth the requirements for the collection of biometric and biographic data for purposes of national security and law enforcement clearances. Requires additional security screening, based on national security information, if an RPI applicant or dependent spouse or child is or was a citizen or long-term resident of a country or region known to pose a national security threat. Requires the Secretary to make a list of countries that pose a threat to the national security of the U.S. and then to subject anyone who was a citizen of those countries to additional security screenings before granting RPI status.

§245B(c)(9) (pg. 969): Duration of Status and Extension. Initial RPI status valid for six years unless revoked. May be extended for additional six years if:

• RPI continues to be eligible for RPI status and RPI status has not been revoked; and
• RPI satisfies any applicable federal tax liability;
• Employment Requirement. Applicant (1) must have been regularly employed through RPI period (allowing for gaps of not more than 60 days); and (2) is not likely to become a public charge; or (3) demonstrates an average income or resources not less than 100 percent of the poverty level throughout RPI period.
  • Applicant can satisfy the employment requirement by providing evidence of full-time attendance at certain educational institutions/programs.
  • The following individuals are exempt from the employment/education requirement:
    • RPIs under 21 at time of first extension of RPI status;
    • Those over 60 on the date of filing (or 65 on the date of adjustment);
    • Those with a physical or mental disability or pregnancy; and
    • RPI dependents.
  •  Temporary exceptions allowed for medical leave, maternity leave, childcare or other circumstances outside the control of the RPI that render the RPI unable to work.
    •  Allows for a waiver if applicant can show extreme hardship to him- or herself or to a USC or LPR spouse, parent, or child.

§245B(b)(c)(9)(A)(III) (pg. 969): Requires an RPI to pass an additional background check at the time of extension.

§245B(c)(10) (pg. 971): Fees and Penalties. Provides for the collection of a filing fee from applicants over age 16 to be determined by DHS Secretary. DHS Secretary may limit fees and exempt defined classes of  individuals from the fee requirement. RPIs 21 and older must pay a $1,000 penalty (unless exempt as described in §245D). Allows for full payment of the penalty amount in installment payments, that shall be completed before an extension may be granted.

§245B(c)(11) (pg. 973): Adjudication. Where RPI application is denied for insufficient evidence, applicant may file an amended application, but must do so during application period.

§245B(c)(12) (pg. 974): Evidence of RPI Status. Provides that RPIs shall receive a machine-readable, tamper-resistant photo ID as proof of RPI status. Document authorizes travel and employment, though employment authorization is limited to three years.

§245B(c)(13) (pg. 975): DACA Recipients. Authorizes the DHS Secretary to grant RPI status to DACA beneficiaries provided that they undergo renewed national security and law enforcement clearances and have not engaged in conduct that would render the individual ineligible for RPI status since DACA was granted.

§245B(d)(1)–(2) (pg. 976): Conditions of RPI Status, Revocation

• RPIs are authorized to be employed in the U.S. and may travel and, if otherwise admissible, may return without a visa if:RPIs to be considered admitted and lawfully present as of date of application. RPIs are not to be classified as nonimmigrants or LPRs.
  • RPI provides proof of RPI status or a travel document;
  • Duration of trip is 180 days or less, absent extenuating circumstances;
  • RPI meets requirements to extend RPI status;
  • RPI is not inadmissible for national security concerns.
• DHS may revoke RPI status at any time if:To revoke RPI status, DHS must provide notice and administrative review. May require RPI to appear for interview. If RPI status revoked, RPI document immediately invalidated.
  • RPI no longer eligible for RPI status;
  • RPI knowingly used RPI documentation for unlawful or fraudulent purpose;
  • RPI absent from the U.S. for a single period of 180 days or 180 days in the aggregate during a calendar year, absent extenuating circumstances.

§245B(d)(3)–(4) (pg. 979): Public Benefits and Tax Provisions. Provides that RPIs are ineligible for federal means-tested benefits, and are considered lawfully present except for purposes of certain tax credits provisions, including tax credits, and certain provisions related to the Affordable Healthcare Act. Requires HHS to conduct regular audits.

§245B(d)(5) (pg. 981): Assignment of Social Security Numbers. Authorizes the Social Security Administration to issue social security cards and numbers to RPIs. §245B(e) (pg. 982): Dissemination of Information on RPI Program. Requires DHS to disseminate information in relevant languages to the public regarding the RPI program.

Enlistment in the Armed Forces. Modifies existing law to allow RPIs to enlist in the U.S. Armed Forces.

Sec. 2102. ADJUSTMENT OF STATUS OF REGISTERED PROVISIONAL IMMIGRANTS. (pg. 983) 

Adjustment of Status of RPIs. Adds new INA §245C to establish the legal regime by which RPIs may adjust to LPR status.

§245C(a) (pg. 983): Authorizes DHS to adjust the status of RPIs to LPR status provided they meet certain requirements, including those set forth in §2302(c)(3), which establishes the merit-based system for immigrant visas.

§245C(b) (pg. 983): Eligibility Requirements.

• Applicant must have been granted RPI status and remain eligible for such status. Previously waived inadmissibility grounds do not apply. Applicants cannot adjust if DHS has initiated RPI revocation process.
• Applicant cannot have been absent from the U.S. for more than 180 days in any calendar year during RPI status, unless there were extenuating circumstances.
• Applicant must have satisfied any federal tax liability assessed in accordance with IRC section 6203 since being granted work authorization in connection with RPI status.
• Employment Requirement:
  • Applicant: (1) must have been regularly employed through RPI period (allowing for gaps of not more than 60 days); and (2) is not likely to become a public charge; OR (3) demonstrate average income or resources of 125 percent of the federal poverty guidelines throughout the RPI period.
  • Applicants cannot be required satisfy this requirement with a single employer.
  • Applicant can satisfy the employment requirement by providing evidence of full-time attendance at certain educational institutions/programs.
  • The following individuals are exempt from the employment requirement:
    • RPIs under 21 at time of first extension of RPI status;
    • Those who are at least 60 years old on the date of filing for an extension of RPI status or those who are at least 65 years of age on the date of applying for adjustment;
    • Those with a physical or mental disability or pregnancy;
    • RPI-dependents.
  • Temporary exceptions allowed for medical leave, maternity leave, childcare or other circumstances outside the control of the RPI that render the RPI unable to work.
    • Allows for a waiver if applicant can show extreme hardship to him- or herself or to a USC or LPR spouse, parent, or child.
  • Applicants 16 years or older must meet the English/civics requirements used in naturalization, or be pursuing a course of study in English/civics, unless the applicant suffers from a disability (mandatory waiver) or is 70 or older (discretionary waiver). If English/civics requirement is met at adjustment, there is no requirement to re-test at naturalization.
  • Applicant provides proof of selective service registration, if the alien is subject to registration on or after the date that RPI status is granted.

§245C(c) (pg. 994): Application Procedures. Prohibits RPIs from applying for LPR status until the Secretary of State certifies that immigrant visas have become available for all approved petitions that were filed before the date of enactment.

• Must file an application and pay a filing fee (to be determined by DHS Secretary).
• Applicant may be interviewed by DHS.
• Must complete new national security and law enforcement clearances.
• Applicants 21 years of age or older on April 16, 2013, (date bill introduced in Senate) must pay a $1,000 penalty unless adjusting status under the provisions for DREAMers.

Sec. 2102(b) (pg. 997): Limitation on Registered Provisional Immigrants. Provides that RPIs may only adjust status under §245C (adjustment of status of RPIs), §245D (adjustment of status for DREAMers) or §2302 of this Act (merit-based track two).

Sec. 2102(c) (pg. 998): Naturalization. Amends INA §319 to allow some LPRs meeting certain physical presence and other requirements to apply for citizenship within three years of obtaining LPR status.