Summary of Key Legalization Provisions in S. 1639

Title VI of the Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007 (S. 1639) creates a new Z nonimmigrant visa category for individuals currently in undocumented status and provides for earned adjustment to legal permanent residence.

Grounds for Z Visa Eligibility (Section 601):

Principal Z visa applicants must:

• Have been continuously physically present since 1/1/07;
• Be admissible under the immigration laws (with exceptions noted below); and
• Be working and seek to continue performing labor, services or education.

Spouses, children, and elderly parents of principal Z visa applicants can also obtain a Z visa, subject to the following conditions:

• Must have been continuously physically present since 1/1/07;
• Children must be under 18 on date of application, and must be the natural-born or legally adopted child of the working Z visa holder;
• Spouses of working Z visa holders may only retain their status if their relationship terminates if the cause is domestic violence.

Existing grounds of inadmissibility that would NOT apply: unlawful presence bars, failure to attend a removal proceeding, misrepresentation and false claims to USC. No waiver for: grounds related to criminal activity and security risks; aliens who were previously deported and subsequently reentered the country; and certain other grounds. NOTE: Although use of false documents is not grounds for ineligibility, if the applicant is denied either the Z visa or an immigrant visa, she can be prosecuted for having used false documents.

Exceptions to Eligibility - Applicants are ineligible for Z visas if they:

• are subject to final orders of removal or reinstatement of removal;
• have persecuted others;
• have been convicted of one felony, one "aggravated felony" as defined by the INA sec. 101(a)(43), three or more misdemeanors, one "crime of violence," or one crime of reckless driving or DUI if the crime resulted in an injury;
• entered or attempted to enter the U.S. illegally after 1/1/07;
• cannot establish good moral character during the 3 years prior to applying for a Z visa;
• are a minor spouse or child of an ineligible principal Z visa applicant.

Extreme Hardship Waiver: An extreme hardship waiver is available to individuals with final removal orders or orders of reinstatement of removal (if they were not physically removed).

Z Visa Application Process (Section 601):

Timeline: USCIS will begin accepting Z visa applications 6 months after enactment. Application period will last 1 year, but can be extended by DHS Secretary for an additional year.

Interim Stay of Removal: There is in effect an interim stay of removal for immigrants who are either apprehended or in removal proceedings between date of enactment and the last day of initial registration for a Z visa, provided they establish prima facie eligibility.

Fees: Initial processing fee capped at $1,500 per beneficiary. Additionally, principal applicant must pay $1,000 penalty, $500 State Impact Assistance Fee, and $500 penalty per derivative. The total for a family of four to make an initial Z visa application could run as high as $9000.

Other Application Requirements - Z visa applicants must also:

• Complete a detailed application form, including data on employment history, immigration history, and other factors relating to Z visa eligibility;
• Submit fingerprints for a background check;
• Undergo an interview by USCIS;
• Register for the selective service (as required);
• Provide evidence of continuous physical presence, employment, or education to meet the statutory requirements for a Z visa. Acceptable forms of evidence include Federal, State, or local government records, bank records, business/employer records, union or day laborer center records, remittance records, and other documentation designated by DHS.

Probationary Z Visa Status: After an initial background check, to be completed in one business day following acceptance of an application, USCIS will issue a tamper-proof document providing the Z visa applicant with interim work authorization, discretionary advance parole, interim protection from deportation, and temporary suspension of their classification as an unauthorized alien. Once the Z visa is granted (after enforcement benchmarks or "triggers" are met and all background checks are complete), the applicant will receive new documentary evidence of her status and the benefits it confers.

Terms of Z Visa Status (Section 601)

Benefits: The Z visa is good for an initial four years, and accords the visa holder and her spouse and children benefits including work authorization (including complete portability) and travel permission.

Work Requirement: The principal applicant (and any child over 16) must remain employed while in status unless he or she is a full-time student, disabled, or unable to work due to a pregnancy. Limited exception for force majeure interruptions as determined by the Secretary.

Extension of Z Visa Status beyond Initial 4-Year Period

Z visa status may be extended indefinitely, provided that the immigrant:

• Remains eligible for a Z visa (for derivatives, their principal must remain eligible);
• Has filed all change of address notifications in a timely manner;
• Pays an extension fee capped at $1500 per beneficiary - the total for a family of four to extend their Z visas could run as high as $6000;
• For the first renewal, shows that she is trying to learn English and U.S. civics (either by taking the exam administered to naturalization applicants or by demonstrating enrollment or attempted enrollment in an English class);
• For the second renewal, demonstrates proficiency in English and knowledge of U.S. civics by passing the exam administered to naturalization applicants;
• Exceptions to the English language and U.S. civics requirements are made for minors (under 18), disabled people, and long-term U.S. residents over the age of 50.

Lapses in Status and Delays in Filing Extensions: Forgivable only at the discretion of the Secretary. A limited exception is made for victims of domestic violence.

Adjustment to Other Nonimmigrant Status: Z visa holders may not change status to another nonimmigrant visa classification other than the U visa (for crime victims).

Termination of Z Visa Status: Z visa status will terminate if the visa holder fails to timely file an extension of status, becomes ineligible for such status (including by failing to maintain employment), is found removable for criminal conduct, is found newly inadmissible, or uses the Z visa documentation fraudulently. Spouses and children of Z visa holders lose their visas if the principal becomes ineligible. Z visa holders applying under the agriculture work rules have to meet specific prospective work requirements in agriculture.

Adjustment to Lawful Permanent Resident Status for Z Status Aliens (Section 602)

Timing: All Z visa holders would be eligible to apply for permanent residence during a five-year period starting on the date that the pre-5/05 green card backlogs have been eliminated.

Touchback Requirement: Applications for adjustment of status must be filed in person at a U.S. consulate in the immigrant's country of origin. (The Secretary has some discretion regarding the consular filing requirement, but the language is inadequate.)

Fees & Requirements: Principal applicant must pay a $4,000 penalty, plus application fees, and undergo a health screening. The principal must either have paid taxes while in Z visa status or enter into a payment plan with the IRS.

Merit-Based Point System: Green cards for 20% of the estimated universe of adjusting Z nonimmigrants will be made available each year for 5 years, with order of preference determined based upon a special merit-based point system:

• Agricultural Work: 25 total points can be earned for:
  • Agricultural work for 3 years, 150 days/year (21 points)
  • Agricultural work for 4 years, 150 days for 3 years, plus 100 days for 1 year
  • Agricultural work for 5 years, 100 days per year
• U.S. Employment: 15 total points can be earned for:
  • 1 point per year of lawful U.S. employment
• Home Ownership: 5 total points can be earned for:
  • 1 point per year of ownership of place of residence in U.S.
• Medical Insurance: 5 points total can be earned for:
  • Current medical insurance for entire family (5 points)

Administrative Review, Removal Proceedings, and Judicial Review (Section 603)

Administrative Review: An applicant whose status has been denied, terminated, or revoked may file an administrative appeal no later than 30 days after the decision. Review will be based on the record established at the time of the determination and any newly discovered or previously unavailable evidence. The applicant is entitled to 1 motion to reopen or reconsider.

Review in Removal Proceedings:

• An applicant who receives a denial of the administrative review may request to be placed in removal proceedings under section 240 to seek review before an immigration judge.
• An applicant whose status has been denied, terminated, or revoked based on aggravated felony convictions may be placed in administrative removal proceedings under sec. 238(b).
• An applicant whose status has been denied, terminated, or revoked based on other crimes may be placed in removal proceedings under section 240 to seek review before an immigration judge.
• Applicants in removal proceedings will be entitled to 1 motion to reopen or reconsider.

Judicial Review:

• No judicial review of Z visa denials due to late filings.
• A denial or termination may be reviewed only in conjunction with judicial review of a removal order, provided that all administrative remedies have been exhausted, and that court decides a challenge to the denial or termination only upon the administrative record on which the Secretary's decision was based.
• No court may review any discretionary determination made by the Secretary.
• Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.
• U.S. District Court for DC has sole jurisdiction over challenges to the constitutionality of programs in Title VI. Challenges must be brought no later than one year after enactment relating to constitutional changes, one year after promulgation of regulations, or one year after implementation of policies and directives. Class actions are permitted.

Confidentiality (Section 604):

The carefully crafted confidentiality provisions included in the original bill were replaced in S. 1639 by the Cornyn amendment adopted on 6/6/07. As a result, many important confidentiality protections have been stripped from this version of the bill. For instance, under section 604 of this bill, confidentiality provisions do not apply to information contained in denied applications for Z visa or LPR status, regardless of why those applications were denied. This section as amended also authorizes disclosure of information from applications in connection with an investigation of civil - in addition to criminal - violations.

DREAM Act (Section 614):

Title VI includes provisions of the DREAM Act that allow long-term residents who entered the U.S. as children to adjust to LPR status. Individuals who are eligible for Z visa status and meet DREAM Act requirements may begin to adjust to LPR status 3 years after the date of enactment. Section 616 also allows provision of in-state tuition to probationary Z or Z visa holders, and federal education assistance to Z visa holders.

AgJOBS (Section 622):

Establishes a program whereby aliens who can demonstrate at least 863 hours or 150 agricultural work days during the 24-month period ending on December 31, 2006, would have an opportunity to adjust their status to that of an alien in "Z-A" status. Z-A aliens who meet certain requirements will receive priority access to green cards.

Cite as AILA Doc. No. 07062166.