What Does Bush Plan Really Mean to Illegal Aliens?
Eligibility to Apply for a Temporary Worker Nonimmigrant Status: Bush does not automatically legalize all the illegal aliens. It will just give an opportunity to apply for a certain nonimmigrant status which is similar to the current H-2A and H-2B Temporary Worker status. Under the current immigration, an alien who is an undocumented alien or in out-of-status is ineligible to apply for any nonimmigrant visa status in the United States. Bush plan will waive this ineligibility so that they can apply for such temporary worker nonimmigrant status even if they are so-called illegal aliens. Since the plan requires a rigorous labor market test, probably more rigorous than the current temporary labor certification application for H-2 (A,B,C) visa petitions, it may not be that easy.
Eligibility to Apply for Adjustment of Status to a Lawful Permanent Resident Status: Similar to 245(i) Benefit: Currently, those who are out-of-status or illegal aliens, including the border crossers, are not eligible to apply for a permanent resident status, even if they are otherwise eligible through family petitions or employment petitions or immigration lotteries, unless they are eligible to apply for 245(i) benefits. At this time, 245(i) benefit provision sunset on April 30, 2001 and no such benefit is available unless the eligibility was established on or before April 30, 2001. The Bush plan will give a waiver of ineligibility of adjustment of status which is analogous to 245(i) benefit once the alien completes the three-year temporary employment without violations. This will be a tremendous benefit to the eligible temporary workers under the Bush plan.
Waiver of 3-Year Bar or 10-Year Bar for Immigrant Visa Applications: Under the current law, those aliens who accumulate the unauthorized status from 6 months to 1 year are ineligible to return to the U.S. either on nonimmigrant status or immigrant status for 3 years. If the unauthorized status reach 1 year and the alien departs from the U.S., such illegal alien is unable to return to the U.S. for 10 years. The Bush plan will waive such inadmissibility to the United States, should the illegal aliens apply for a nonimmigrant or immigrant visa at the American Consulate in his/her home country after completing the temporary work under the Bush plan for 3 years. This will be a huge benefit which was not available to even 245(i) beneficiaries in the past. Currently, the 245(i) beneficiary is unable to return to the U.S., if they are subject to the 3-year bar or 10-year bar, no matter whether they have an advance parole. Accordingly, these people were unable to travel outside of the U.S.
Waiver of Other Inadmissibilities Related to Entry Without Inspections (EWI): Certain EWIs are subject to 5-year, 10-year, 20-year, or permanent bar under the current law, should they fall under the certain provisions of the immigration statutes. Bush plan may in all likelihood waive some of such bar to return to the U.S.
Foregoing Benefits Extended to Accompanying or Following-To-Join Immediate Family Members (Spouses and Children under 21 Years): According to the Bush plan, once the foregoing benefits are attached to the principal illegal aliens, just like the 245(i) provisions, same benefits will be extended to the dependent immediate relatives. Good deal!
Caveat: Bush plan does not provide waiver of any other ineligibility or inadmissibility. If such alien is deportable or inadmissible for committing a crime or fraud or other acts of deportability or inadmissibility other than illegal entry to the U.S. or overstay in the U.S., such aliens may not be eligible not only for the Bush plan temporary worker eligibility but also for waiver of the inadmissibility.
Caveat: Once the illegal aliens come out of the closet, such aliens may be vurnerable to enforcement actions unless the Bush plan is translated into a special provision in the legislation by the Congress that such information cannot be used by the DHS to initiate an enforcement action. For instance, if the temporary worker application is denied, the alien should return to the illegal alien status and subject to deportation unless such legislation is enacted. Besides, the illegal aliens can be arrested and deported until such temporary worker application is filed. For the Bush plan to work, it is extremely important that the legislation incorporate the kind of provision in the 1986 amnesty legislation which shielded the applicants from enforcement action based on the information provided in the process of application for a temporary worker status. The 1986 law had a provision punishing the immigration officials who disclosed such information to other immigration officials in the enforcement units. VERY, VERY IMPORTANT.
source:
http://www.immigration-law.com/
