Understanding the Proposed Legalization: Who Is Eligible?

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The “Gang of Eight’s” immigration reform bill was released last week, and I have been sifting through its elements since it “dropped.” The most crucial aspect for Long Island’s 100,000 undocumented immigrants is the legalization program. Over the next few weeks I’ll discuss that in a series of articles. I’ll also be posting more practical tips for the undocumented in my new series on How to Get Ready for Legalization.

The first thing I want to talk about is who is eligible to apply for the legalization program. The bill has three basic routes to legal status. The first is for principal applicants, a second for their dependents, and a third for those who have been granted DACA (Deferred Action for Childhood Arrivals). Those who successfully apply will be granted Registered Provisional Immigrant (RPI) Status and be allowed to live and work in the United States.

The principal applicants must have been in the United States on or before December 31, 2011. They will have to prove that they were here at that time and have remained here since. Those who were here on December 31, 2011, but made brief, casual and innocent trips outside the U.S. after that date may still be eligible.

A person is not eligible to apply if they were convicted of a felony, or if they have been convicted of three or more misdemeanors. However, if a person was convicted of multiple misdemeanors committed at the same time, these will be counted as only one misdemeanor.

So for example, if a person was at a street festival, gets arrested and convicted of disorderly conduct and of openly carrying alcohol, even though these may be two separate misdemeanors under their state’s laws, they will only count as one misdemeanor for the purposes of applying for this legalization program. There is also a limited “waiver” allowing the Department of Homeland Security to forgive those convicted of three or more misdemeanors for purposes of family unity or for humanitarian reasons.

As you might expect, terrorists may not apply for the program, nor can anyone who voted illegally in a U.S. election. People who are currently in the U.S. on a variety of non-immigrant visas like tourist visas or H-1Bs are also not eligible to apply. Those who received Temporary Protected Status (TPS) may apply.

The second group of people eligible to apply consists of the spouses and children of those granted RPI status. To be eligible, these “dependants” must have entered the country by December 30, 2012. That cut-off date is important. It means that people who came to the U.S. after December 31, 2011, and who do not qualify as principal applicants for RPI status, may still be eligible if they came in during 2012 and are the spouses or unmarried children under 21 of those granted RPI status. These dependants will retain their own RPI status even if they divorce the principal or become separated due to domestic violence or if the principal dies. This is an important saving provision in the proposal and may help tens of thousands of people get into the program who came after December 31, 2011.

The third group of RPI applicants are those DREAMers already granted DACA. It appears from the bill that the Department of Homeland Security will be able to automatically give those who received DACA their RPI status.

Next week, I’ll write about how some people who were deported can re-enter the United States to apply for RPI and how those people in ICE detention will be treated under the reform proposal.

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Patrick Young blogs daily for Long Island Wins. He is Director of Legal Services at CARECEN and Special Professor of Immigration Law at Hofstra University. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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