Prof. Abdul Wahid SheikhOsman
Disclaimer:“The information and analysis contained in this short essay is for your information only and is not a legal advise on specific case. It is not intended to create an immigration consultant-client communication. One should not make a legal decision based on this information until the facts of each specific case are fully discussed with an immigration professional/practitioner. Further, the McCain-Kennedy Bill is NOT yet the law of the land”
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Senators John McCain (Republican-Arizona) & Senator Edward M. Kennedy (Democrat-Massachusetts)
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Hundreds of thousands of pro-immigrant people took to the streets in cities across America this month for pro-immigrant rallies as the U.S. Senators debated landmark comprehensive immigration reform legislation (the Secure America and Orderly Immigration Act of 2005 “SAOIA”) considered by many as the only immigration legislation with bipartisan support in the U.S. Senate. The Bill was introduced by US Senators John McCain (Republican-Arizona) and Edward "Ted" Kennedy (Democrat-Massachusetts) on May 12, 2005.
The McCain-Kennedy bill, if it passes, would address some of the hot-button immigration issues in an “immigrant-friendly” manner. It also received wide support from a wide range of organizations and institutions, e.g., the Essential Worker Immigration Coalition, the U.S. Chamber of Commerce, the Service Employees International Union, and the U.S Conference of Catholic Bishops.
On Friday April the 7th 2006, a compromise to pass the legislation has failed in the US Senate, however, the bill is expected to be taken up, once again, by the full Senate sometime in early May according to Senate Judiciary Committee Chairman Arlen Specter (Republican- Pennsylvania).
Main Features
Some of the main features of this Bill include:
I. Earned Legalization Program (H-5B Visa)
The Earned Legalization Program (H-5B) is a new program that would allow the undocumented immigrants in the US to participate in a new H-5B temporary visa program and, after six years, apply for permanent residency.
In order to become eligible for the H-5B Visa, the Bill requires the immigrant to:
A) Undergo criminal and security checks in order to eliminate the existence of criminal record or security concerns that would prevent him/her from legalizing.
B) Have sufficient understanding and study of English, US civics and history,
C) Have been engaged in an employment in the US on May 12, 2005 under a status considered “not legally present”
D) Have complied with tax requirements
The Bill also imposes a $1,000 penalty on the immigrant in addition to the application fees.
Once the above conditions are fulfilled, the immigrant may be eligible to legalize under the Earned Legalization Program (H-5B Visa). The immigration benefit under this provision extends to the spouse and children of the qualifying immigrant. The worker’s family may be able to legalize or enter the U.S. legally to join the worker.
Another provision in the Bill permits students to substitute education and school attendance for employment requirements. In other words, students can apply H-5B visa after providing sufficient evidence of attendance of an institution of higher education or a secondary school instead of having to prove that they have a history of employment in America. SAOIA further permits the immigrants with H-5B visa to travel abroad.
II. Family Unification
The McCain-Kennedy bill has introduced major changes in the area of family-based sponsorships and unification by easing the allocation of the permanent resident visas, which, in turn, reduces the outrageously long waiting period under the current system. The Bill also removes the financial requirements for the sponsors who are required to fill out Affidavit of Support (Form I-864). Under the bill, the sponsor can support the immigrant at 100% of Federal Poverty Guidelines rather than the current 125 % Federal Poverty Guidelines. The bill would also expand the waiver for fraud or misrepresentation and make this waiver available to non-citizens who pay a $2,000 fine.
III. New Temporary Worker Program (H-5A Visa)
The bill introduces a temporary worker program for workers outside the US under new “independent worker” (H-5A) visa, which is valid for three years and can be renewed for a total of 6 years. It requires the worker to show evidence of job offer in the US. It further requires the employers to establish that they have failed to find a US worker that would fill the position. Finally, a major change under this bill is that the H-5A visa is ‘Portable”; it allows workers who has H-5A to change employers without being tied to any particular employer so long as they have valid H-5A visa. The workers can also bring the family with them.
Some highly skilled Somalis in Europe, Canada, Australia or elsewhere who wish to work in the US could benefit from this new Worker Program.
Impact On Somali Immigrants
Reliable estimates suggest that there are thousands of Somalis in the US with legal problems in their documentation or legal status.
The majority of the Somalis with immigration problems fall into the following categories:
A) Somali Immigrants in Removal Proceedings
The SAOIA allows immigrants in removal proceedings to apply for H-5B status without having to move to reopen their cases. In a remarkable departure from the current law, the Bill doesn’t punish the applicants of H-5B status for prior immigration violations including making misrepresentation of facts or failure to comply with voluntary departure orders. Such violations usually lead to denial of benefits or other severe consequences on the immigrant’s status under the current law.
B) Somali Immigrants With Pending Asylum Application or With Temporary Protected Status (TPS)
The Temporary Protected Status (TPS) allows certain nationals to live and work in the United States until the conditions in their home country improve and it is safe for them to return
. Once a country is designated under the TPS program, TPS registrants may remain in the United States and may obtain work authorization.
The Secretary of Homeland Security has designated Somalia for TPS until September 17, 2006. As a result, there are hundreds, if not thousands, of Somalis who are current TPS registrants in the US.
The position of the Somalis with TPS or those with pending asylum applications is rather tricky one, and might be troubling, under the McCain-Kennedy bill.
As stated above, in order to qualify for the Earned Legalization Program (H-5B Visa), the undocumented worker must establish that they were considered “not legally present” in the US on May 12, 2005. This requirement may potentially complicate the status of the above two categories if it is interpreted in such a way as to exclude the TPS registrants and individuals with pending asylum cases on the ground that they have temporary “legal status”.
In reality, however, most of The Somalis with TPS or with pending asylum applications do not intend to return to Somalia. In addition, majority of them have employment authorizations under their current status and, therefore, are “legally present” in the US. On the other hand, if the Secretary of DHS revokes the TPS designation for Somalia or, in the case of asylum seekers, if their final appeal is denied, these Somalis would, no doubt, become part of the undocumented immigrants.
C) Undocumented Somalis Living or Working “Underground”
This category stands to benefit most from the legalization under this legislation and is, perhaps, the intended target of the authors of this reform bill. SAOIA would provide an avenue for these undocumented immigrants to obtain six years of temporary legal status, and ultimately permanent residence.
The McCain-Kennedy Bill is a comprehensive bill that addresses issues and areas in immigration law not mentioned in this discussion. The bill, while far from ideal, constitutes a serious attempt to fix an immigration system considered, almost universally, to be “broken” one.
Further details on this Bill and updates on other legislative alternatives to the Bill (including the Bill by the Senate Majority Leader, Senator Bill Frist), can be obtained by contacting the Somali-American Legal Institute in Minneapolis, Minnesota at: (612) 871-8421.
Abdul Wahid SheikhOsman is an Adjunct Professor at the University of Minnesota Law School and Director of Somali-American Legal Institute.He is also a regular legal affairs contributor to Hiiraan Online and can be reached at: E-mail: [email protected]
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