US Citizenship Act of 2021 – key provisions

Sen. Menendez released the text of the U.S. Citizenship Act yesterday (the bill that Biden claimed to have sent to Congress on day one, i.e. Jan 20). It’s 353 pages long, so I’m only going to summarize some key provisions that are likely to be of most interest to people who have previously read my US immigration-related writing. The bill is quite ambitious, and therefore highly unlikely to pass the Senate in its current form (some doubt that it can even pass the House). However, it sets a starting point for negotiations and perhaps a watered-down version can eventually pass (though I wouldn’t hold my breath if I were you).

Title I, Subtitle A: New paths to lawful permanent resident status

• Allows DREAMers to apply for lawful permanent resident (LPR) status, i.e., a green card, if they meet one of the following conditions:
  • earned a diploma from a US high school; or
  • earned a degree from a US college; or
  • completed at least two years of a degree program in the US; or
  • served in the US armed forces for at least 2 years; or
  • have been gainfully employed for at least 3 years, but enrollment in a post-secondary institution also counts toward the 3 year requirement.
• Allows citizens of TPS and DED designated countries to directly apply for LPR status if they have resided continuously in the US since January 1, 2017.
• Allows agricultural workers to directly apply for LPR status if they performed agricultural labor or services for at least 2,300 hours or 400 work days during the 5 years immediately preceding such application.
• Creates a new status called “Lawful Prospective Immigrant”. This is not LPR status, but is a transitional status that an immigrant can apply for if they do not fall into one of the above categories.
  • This status lasts 6 years and can be renewed.
  • Allows the holder to work and travel on basically the same terms as a lawful permanent resident (green card holder).
  • Can be converted into LPR status after 5 years.
  • To apply, you must be unlawfully present, unless you have H-2A status or you have worked in essential infrastructure during the COVID-19 pandemic. More on this in the comments.
• Limits the above provisions to individuals who were present in the US on Jan 1, 2021. However, exceptions can be granted for humanitarian, family unity, or other public interest purposes in the case of individuals who were removed during the Trump administration, if certain other conditions are met.
• Individuals may not qualify for the above benefits if:
  • they are inadmissible due to criminal convictions under the current standards (INA 212(a)(2)), or
  • they have been convicted of any felony, or
  • they have been convicted of 3 or more misdemeanors (not including simple possession of cannabis and minor traffic offenses)
  • Felony and misdemeanor convictions are not disqualifying if they include the person’s immigration status as an “essential element”. In other words, they are only disqualifying if they would also have been crimes if they had been committed by a US citizen. For example, presumably, a conviction for “possessing a firearm while an unauthorized immigrant” would not be disqualifying.
  • There are waivers available for the above grounds of ineligibility, which I won’t get into here.
• Individuals may qualify for the above benefits notwithstanding:
  • public health grounds of inadmissibility (INA 212(a)(1)),
  • likelihood of becoming a public charge (INA 212(a)(4)), and
  • most kinds of previous immigration violations, including overstaying, illegal entry, fraud or misrepresentation in connection with immigration applications, false claims to US citizenship, or having voted while not a citizen.
• Individuals who are in removal proceedings must be given an opportunity to apply for the benefits of this subtitle before being finally removed.
• Spouses and children of individuals who qualify for the above immigration benefits may derive immigration benefits through the principal applicant, without having to meet the qualifications themselves. For example, an undocumented spouse of an agricultural worker could obtain LPR status without needing to themselves be an agricultural worker.

Title I, Subtitle B: Miscellaneous reforms

• Reinstates the V visa program, which allows people who are waiting in line for a family-based immigrant visa to live and work in the US while waiting in line.
• Allows individuals to qualify for immigration benefits if their criminal convictions have been expunged or if the court has issued a judicial recommendation against removal.
• Expands availability of humanitarian, family unity, and public interest waivers of grounds of inadmissibility. (Grounds of inadmissibility based on national security cannot be waived.)
• Allows deportation to be waived for humanitarian, family unity, or public interest reasons. (This does not apply to individuals who have committed an aggravated felony or who must be deported for national security reasons.)
• Waives the 5-year waiting period for LPRs to apply for citizenship, if the LPR was lawfully present in the US and eligible for employment authorization for at least 3 years before becoming an LPR.
  • Reporters and immigration lawyers seem to assume that eligible individuals will still have to wait 3 years after becoming an LPR before they can apply for citizenship. This would also align with VP Harris’s comments that the bill would create an 8 year path to citizenship (5 years as LPI + 3 years as LPR). However, the actual text, at least the version above, doesn’t have the 3 year waiting period. The bill may be amended later to bring the text in line with the intent.
  • Lawful Prospective Immigrants will be considered lawfully present. Therefore, individuals who qualify for LPI status will (under the current wording) have a 5-year path to citizenship, by obtaining LPI status, adjusting to LPR status after 5 years, then immediately applying for naturalization on the basis of their previous LPI status. If the text is amended to reinstate the 3 year waiting period, then it will be a 8-year path.
  • DREAMers will have a 5-year path to citizenship, since they could apply for LPR status immediately, and then have the ordinary 5-year waiting period as an LPR before applying for citizenship.
  • This provision would also apply to many employment-based immigrants, since many of them worked in a status such as H-1B or L-1 for several years prior to becoming an LPR.

Title II: Border reforms

• Subtitle A is titled “Promoting the Rule of Law, Security, and Economic Development in Central America”. It appears to be focused on forming partnerships with Central American countries to help improve the conditions of those countries so that fewer people will irregularly migrate to the US. I’ll skip the details of this subtitle, but it’s worth noting its existence.
• Subtitle B is about improving refugee processing. It does not increase the refugee cap as it currently exists in law, but codifies into law the former Central American Minors Program, exempting certain Central American minors from the refugee cap if they have a parent who is lawfully present in the US, and introduces a new Central American Family Reunification Parole Program, which allows certain Central Americans to be paroled into the US if they are waiting in a family-based immigration backlog.
• Subtitle C is focused on improving screening of legitimate trade and travel across the border and enhancing the ability to detect contraband, especially illegal drugs, including by deployment of additional technology along the border.
• Subtitle D prohibits punitive family separation policies and destruction of DHS records relating to detained children. It also directs government officials to set appropriate standards of care related to detained individuals, but without going into any specifics.

Title III, Subtitle A: Immigrant visa reform

• Stops counting immediate relative visas against the family-based visa quota. (Currently, there is no limit on immediate relative visas, e.g., spouses of US citizens, but the number of such visas issued is deducted from the family-based quota.) This will ensure that at least 480,000 non-immediate-relative family-based visas will be available per year, compared to the current system which only makes 226,000 non-immediate-relative family-based visas available per year.
• Improves visa recapture for family-based immigrants. In addition to the base number of 480,000 visas per year, there will also be extra family-based visas equal to the number of unused employment-based visas from the previous year, plus the number of unused family-based visas from fiscal years 1992 through 2020.
• Increases the base quota for employment-based immigrants from 140,000 to 170,000. (However, see Subtitle D.)
• Recaptures unused employment-based visas from fiscal years 1992 through 2020. These will be added to the employment-based quota. (The current system recaptures unused family-based visas from the previous year under the employment-based category, but does not recapture older unused employment-based visas. The new system would do both, which would have a substantial impact on reducing backlogs.)
• Reclassifies spouses and children under 21 of LPRs as immediate relatives, thus exempting them from quotas.
• Under the new system, no more than 20% of the total family-sponsored visas per year could go to natives of any single country. (Under the current system, the limit is 7%, which creates extremely long backlogs for Mexicans. This should alleviate this issue somewhat, although it’s not clear how much.)
• Priority dates from any kind of family-sponsored or employment-sponsored immigrant petition can be ported to any subsequent petition, even if it’s in a different category.
• The 3-year bar and 10-year bars, which currently prohibit people from entering the US for a period of time if they were previously unlawfully present in the US, are repealed.
• The permanent bar is repealed. (The permanent bar results in a lifetime ban from entering the US, if a person either was unlawfully present for 1 year or was deported, and then subsequently enters the US illegally.)
• The 5-year, 10-year, and 20-year bars on the return of individuals who were previously deported are maintained, but the Secretary of Homeland Security is given broad discretion to waive these bars for both nonimmigrants and immigrants.
• US citizen parents can transmit their citizenship to adopted children on the same basis as naturally born children who are born outside the US, if the adoption occurs before the age of 1 year. Such adopted children would be considered to have US citizenship from birth. (Don’t ask me if they can run for president when they turn 35. I don’t know.)
• Children born to parents using assisted reproductive technology would be able to derive US citizenship from their parents on the same basis as naturally born children.

Title III, Subtitle B: NO BAN

• Expands the current non-discrimination provisions in order to include religion as a protected trait.
• Expands the current non-discrimination provisions so that they apply to applicants for any kind of visa, admission to the United States, and any kind of immigration benefit.
• Limits INA 212(f) (which President Trump, and more recently Biden, used to enact immigration bans) so that it can only be used for grounds of “security or public safety of the United States, or the preservation of human rights, democratic processes or institutions, or international stability”. This would bring permissible uses of presidential bans in line with how the authority was typically used before Trump.
• Explicitly clarifies that 212(f) is subject to the non-discrimination provisions (see my comments below).
• Adds a “rule of construction” paragraph that prohibits 212(f) from being used “in a manner inconsistent with the policy decisions expressed in the immigration laws.”
  • Presumably, this is intended to prevent situations like Trump’s work visa ban, where he banned entry of entire work visa categories on economic grounds, despite the fact that Congress had already established a procedure for preventing work visas from being used in ways that would harm US citizen workers. However, I am not sure whether it is explicit enough to prevent other similar bans from being enacted by future presidents.

Title III, Subtitle C

• Increases the annual number of diversity immigrant visas from 55,000 to 80,000.

Title III, Subtitle D: Employment-based immigration reforms

• Immigrants who have earned a STEM PhD from an accredited US institution would be exempt from quotas. The text is not clear on what the process would be for them to obtain a green card, but as written, they would be exempt from the labor certification requirements of INA 212(a)(5), and therefore presumably would not be required to have a job offer lined up. It seems likely that regulations would establish a simple self-petitioning process, similar to the EB2-NIW self-petition but without any requirement to demonstrate exceptional ability.
• Immigrants who have had an immigrant visa petition (such as an I-130 or I-140) approved for over 10 years would be able to obtain a green card or immigrant visa notwithstanding the fact that their priority date may still not be current.
• Spouses and children of family-based, employment-based, and diversity immigrants would no longer consume quota. (For employment-based immigrants, the effect of this provision would be similar to doubling the quota, since USCIS data shows that principal employment-based applicants have about 1 dependent on average.)
• Abolishes the 7% per-country rule for employment-based immigrants.
• Abolishes the CSPA offset. (This subsection seems like a gesture of goodwill toward Chinese immigrants, but actually has no effect. The CSPA offset expired at the end of fiscal year 2020. If they really want to make a gesture of goodwill, they should recapture the visas that were used for the offset.)
• The extra 30,000 EB visas per year would be allocated to the “Other Workers” category. There would be no increase in the base EB1 and EB2 quotas (however, see the recapture provisions mentioned in Subtitle A).
• Sec. of Homeland Security is given the authority to establish a procedure for temporarily reducing EB2 and EB3 visas due to domestic unemployment. (There’s absolutely no way this provision will be abused, no siree…)
• A new pool of 10,000 EB visas would be created that would be distributed to cities and counties, which would be able to allocate them based on local needs. This pilot program would sunset after 5 years.
• Allows, but does not require, the H-1B selection process to take into account wages (as opposed to being a random lottery as is currently done).
• Makes F-1 students eligible for dual intent (i.e., they may receive visas even if their intent is to eventually apply for permanent status in the US), provided that they are pursuing a full course of study at an institution of higher education.
• H-4 children who first obtained H-4 status before the age of 18 will be able to continue in H-4 status after the age of 21, and will remain eligible to be derivatives on their parent’s green card application.
• Both H-4 spouses and H-4 children will be granted employment authorization explicitly by statute.
• The AC21 H-1B extension provisions for lengthy adjudications will be expanded to also include F-1, L-1, and O-1 non-citizens. That is, any F-1, H-1B, L-1, or O-1 non-citizen will be able to file to extend their status, if a labor certification or an employment-based immigrant petition was filed at least 1 year prior to the extension application. This extension will be for 1 year, and will be indefinitely renewable until the non-citizen’s lawful permanent residence is approved or denied. Furthermore, during each such 1-year extension, the non-citizen will be granted unrestricted employment authorization. This is especially important for F-1 non-citizens. They will be able to go on OPT, get sponsored for a green card at least 1 year before the OPT is to expire, and then (in effect) extend their OPT for as long as necessary to obtain the green card. It will not be necessary for them to enter the H-1B lottery and take a lottery slot away from someone else who is applying from outside the US.

Title IV

• Orders the Attorney General to appoint more immigration judges, for the purpose of reducing immigration court backlogs.
• Requires the government to expeditiously provide people who are in removal proceedings with a copy of their immigration file that is maintained by DHS (this is currently only available through a time-consuming FOIA request).
• Requires the government to provide counsel to individuals in removal proceedings who cannot afford counsel.
• Eliminates the 1 year time limit for non-citizens to apply for asylum after entering the US.

Title V: Employment authorization

• Expands eligibility for U status to noncitizens who have suffered severe harm due to labor and employment law violations.
• Prohibits removal of victims of labor and employment law violations until a decision on their U status application has been made.
• Noncitizens who worked without authorization and whose employers illegally withheld wages will be entitled to back pay (overruling the 2002 Supreme Court decision in Hoffman Plastic Compounds, Inc. v. NLRB).
• Prohibits discrimination against noncitizens in hiring. Presumably this does not mean employers are required to hire noncitizens who require sponsorship, but in the case of noncitizens who do not require sponsorship, such as OPT EAD or H-4 EAD holders, they must be considered for employment on the same terms as LPRs. However, employers can still prefer a citizen over an equally qualified noncitizen.

My comments

• The adjustment of status provisions for DREAMers are very ambitious. If something like them do make it into the final law, it’s likely that Republican support would be conditioned on imposing waiting periods (most likely in the form of a “back of the line” provision, i.e., they would not get green cards until everyone who is in line for an immigrant visa has had the opportunity to receive one).
• It seems unlikely that the general Lawful Prospective Immigrant pathway will make it into law, if Republican support is required to pass the bill. To have a chance at getting Republican support, it would probably have to be severely limited (e.g., to individuals who have resided in the US for 10+ years prior to the enactment of the Act).
• The waiver provision for the 5 year waiting period for US citizenship would benefit me and other people who were stuck in employment-based immigration backlogs while working in the US (mostly Chinese and Indians). I’m quite pleasantly surprised that the Democrats put this in the bill and didn’t limit it to just DREAMers.
• The Central American Minors Program and Central American Family Reunification Parole Program seem unlikely to get any Republican support, for obvious reasons, even when paired with the other reforms in Title II.
• The proposed expansion of family-based immigration is massive. It would increase the number of family-based visas issued without taking visas away from anywhere else. Notably, parents of US citizens would continue to be eligible for immediate relative status (exemption from quotas) under this bill. Adult children and siblings of US citizens would continue to be eligible for family-based immigrant visas. This is an ambitious bill. It is not about making compromises to appease Republicans who are concerned about too much immigration. Of course, this means the odds of Republican support for such provisions are basically zero. If family-based immigration reform is to get any support from Republicans, it will have to be something more like the 2013 Gang of Eight bill, which eliminated immigrant visas for parents and siblings of US citizens, and limited eligibility for adult children of US citizens.
• The increase in diversity visas will not get any Republican support.
• The NO BAN provisions should be regarded as the bare bare minimum that we should demand from Democrats. If they can’t pass it as part of this comprehensive bill, they should pass it as a standalone bill. As a human being, I feel that Trump’s abuse of the law (and the fact that the Supreme Court allowed him to get away with it) to ban entire countries from immigrating is despicable and must never happen again. As a Chinese person, I fear that if the law is not changed to prevent it, then future president Cotton will use it to ban virtually all Chinese people from immigrating to the US. If the Democratic Party does not manage to even fix this issue with the law, they are really and truly useless, and I see no reason why I should vote for them if/when I become a citizen.
• I was worried about whether the NO BAN provisions were going to be explicit enough. Remember that in the Hawaii case, the Supreme Court ruled that—even though the law already says quite explicitly that discrimination based on nationality is not permitted in the immigrant visa issuance process—Trump can still ban immigrants based on nationality. Their logic was that the existing nondiscrimination provisions only apply to people who are admissible in the first place, and Trump can make people inadmissible based on nationality using 212(f), which prevents them from benefitting from the nondiscrimination provisions. Thankfully, the proposed language in the new bill explicitly states that uses of 212(f) shall comply with 202(a)(1)(A) (the non-discrimination provision).
• The employment-based immigrant visa reform provisions seem like they could get bipartisan support. However, assuming that the entire bill doesn’t get passed (which seems extremely likely), I have no idea whether the Democrats will break out these provisions into a standalone bill. As everyone knows, Democrats do not particularly care about employment-based immigrants.
• Notably, the bill does not include any provisions for a points-based system for allocation of employment-based immigrant visas. This is disappointing, and means that prospective employment-based immigrants will continue to struggle with the issue of having to maintain employer sponsorship and remain in certain fields of employment in which obtaining sponsorship is relatively easy (such as software engineering). I’m a software engineer but I don’t think it’s healthy for a country to have an immigration system where it’s really hard for workers who aren’t software engineers to get green cards.
• The F-1 dual intent provision is nice, but it doesn’t go far enough. Congress should abolish the single intent policy in general. Anyone who meets the qualifications for a nonimmigrant visa should be able to receive one notwithstanding the fact that they may eventually seek permanent residence, as long as they are not planning to use the nonimmigrant visa as a backdoor to illegally reside in the US. (Canada, which accepts a large number of immigrants per year but strictly enforces its immigration laws, permits dual intent for all visa categories.)
• As some lawyers I follow on Twitter point out, appointing more immigration judges is not a sustainable solution to deal with immigration court backlogs. What we really need is to expand legal avenues to remove cases from the backlog (i.e., instead of having hearings on whether to deport certain people, they should just not deport most of them). But maybe that’s too extreme to be considered right now.
• A number of other provisions that would have been nice to have did not make it into the bill:
  • Strengthening access to employment authorization documents (EADs) by requiring USCIS to issue EADs within a specified time frame, or allowing more types of documents to be used as proof of employment authorization, for example, allowing an I-94 evidencing H-4 status to be used for I-9 purposes, so that a future administration cannot kill H-4 employment authorization by taking forever to issue EADs, which was done by the Trump administration.
  • Strengthening and explicitly protecting the current (c)(9) EAD rule, which allows noncitizens who are waiting for an adjustment of status application to be processed to work before their green card is finally issued. Congress should codify this rule into law to ensure that it is not rescinded by a future president (Trump was reportedly considering such a move, but I guess it was too extreme even for him) and ensure that applicants are not plagued by lengthy delays.
  • Narrowing discretionary bars to asylum. The current law basically allows the administration to make up whatever “discretionary” criteria they want in order to restrict who may qualify for asylum, which was abused by the Trump administration to make it almost impossible to qualify and also to impose a bunch of random criteria with no real connection with anything intended by Congres. For example, one of Trump’s proposed rules (which was halted by a federal judge before it was to take effect) would have made unlawful entry and the use of fraudulent documents a negative discretionary factor (meaning that it would count against you in terms of whether you qualify for asylum, even if you meet the definition of a refugee). This makes it very difficult to escape from persecution because most people who need to flee from persecution would never be able to get a visa legally. It also would have denials mandatory in the case of an asylum applicant who has ever filed their tax return late or failed to report all income, which seems to have no purpose other than further disqualifying a bunch of people. Congress should mandate that the exercise of negative discretion be limited to individuals who have committed a serious crime, are a threat to public safety, or have third country options available to them. People who are genuinely fleeing from persecution should never be denied asylum on the basis of immigration violations alone or illegal acts that most people would only get a slap on the wrist for. Although Trump’s rule was put on hold by courts, the law should be revised so that there is not even a semblance of lawful authority of the President and executive officials to enact similar regulations in the future.
  • The F-1 OPT program should be codified into law to ensure that it cannot be rescinded by executive action. While even Trump did not rescind or even limit F-1 OPT, it’s possible that he would have tried to do so in a second term. Plus, Trump was arguably not even a true believer in immigration restrictionism—he just did certain things in order to satisfy his base. What if he had been one?
  • Existing DHS policy is that if you file for an extension of status while your current status is still valid, but then your current status expires while you’re waiting for the extension of status to be processed, then you won’t be deported or considered as unlawfully present unless and until the extension is denied. While it’s unlikely that this policy will be rescinded by a future administration, I would rest easier if it were explicitly codified into law.
  • There should be a general grace period for anyone who is suddenly and unexpectedly required to leave the US, or example an F-1 student whose OPT application is denied. Under current policy, they are required to leave the US immediately upon the denial, but DHS will give them some (unknown) reasonable amount of time to depart before trying to deport them. I would rest easier if there were an explicit grace period in the statute.
  • Reinstating the visa revalidation provision, which would allow certain people such as H-1B workers to renew their visas without leaving the US. (The purpose of this would be to ensure that, if they needed to travel at a later date, they would not get stuck outside the US waiting for an opportunity to renew their visas before being able to return.)
  • Reforming INA 221(i) so that the Secretary of State cannot revoke visas for arbitrary reasons and individuals whose visas have been so revoked cannot be deported on the basis of the revocation. Visa revocations should be limited to those individuals who should not have been eligible for the visa in the first place, or who have since become ineligible or a visa. Deportations should be limited to those individuals who obtained their visa fraudulently or have committed a deportable offense; individuals should not be deported just because their visa was revoked on the grounds that they may not qualify for a visa in the future.
  • There should be a provision that allows people who were not able to receive a visa or be admitted to the United States on the basis of Trump’s immigration bans (which Biden, infuriatingly, has left in place) to enter the US once the bans are over. This is especially important for diversity lottery winners, since they cannot just get back in line the way that family-based and employment-based immigrants can.

Further comments on LPI status

The text makes individuals ineligible for LPI status if they are a foreign goverment official in A status (8 USC §1101(a)(15)(A)). This is clearly a typo, since it has an exemption for H-2A noncitizens (you cannot be in both A status and H-2A status at the same time). It seems obvious that they meant to refer to 8 USC §1101(a)(15), and not to subparagraph (A) in particular. In other words, if you have lawful nonimmigrant status, you cannot apply for LPI status. The absurdity of such provision is always pointed out every time they are proposed: why do Democrats want to punish people who followed the law?

There are basically two arguments. There’s a specious legalistic argument, and the real one. The specious legalistic argument is that people who come here on nonimmigrant visas agree to depart at the end of their period of authorized stay. For example, F-1 visa holders agree that they will depart once their studies and any authorized period of practical training have concluded (though they can, of course, “change their minds” later and apply for some other status to remain in the US). On the other hand, people who crossed the border without inspection did not enter into any such agreement. So, according to this argument, people who are in lawful nonimmigrant status have previously “waived” their right to participate in legalization programs in exchange for the benefits of being in lawful status during their stay in the US. I’m sure most people don’t actually find this argument convincing, especially since someone would still be eligible for legalization if they entered on a valid visitor visa and they just decided to overstay for a few months (with their status having become unlawful prior to Jan 1, 2021).

The presumed real reason why (most) lawful nonimmigrants are never included in proposed legalization provisions is that legalization is always meant to be a one time solution to address the large undocumented population of the United States—which both parties agree is a problem that needs to be solved one way or another, and hope to prevent from happening again—whereas it doesn’t make sense to create a one time special path to citizenship that e.g. the 1 million lawful international students who were in the US on Jan 1, 2021 can benefit from but which future international students will not be able to benefit from. (What’s so special about those ones in particular?) And stapling a green card to the diploma of every international student, now and in the future, is not a realistic proposal, as much as open borders people like me want it to be. It makes even less sense to give everyone who happened to be visiting the US on Jan 1, 2021 a special path to citizenship.

Still, limiting eligibility to people who lack lawful status just doesn’t sit right with me. But I don’t know what a politically viable alternative would be. Republicans may very well force a compromise where legalization applicants go to the back of the line, but it still wouldn’t change the fact that they would be receiving a special opportunity that the F-1 students and lawful temporary workers would not (since not every international student or temporary worker has a path to citizenship, and that will continue to be the case even if the bill is passed).

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