Governor Pence Signs In-State Tuition Bill For Some Undocumented Aliens

Gov. Mike Pence signed into law today SB 207, which allows undocumented alien students who were enrolled in universities and colleges in Indiana prior to July 1, 2011 to receive in-state tuition benefits. A 2011 immigration reform law passed by the General Assembly barred undocumented alien students from receiving in-state tuition benefits. Gov. Pence's office released the following statement upon signing SB 207:

"Hoosiers believe in the rule of law and in compassion. The legislation I signed today gives a handful of young women and men who have already enrolled in college the opportunity to finish what they started," said Pence. "I am grateful to the members of both parties for their willingness to address this situation in a manner that reflects Hoosier values."

The enactment of Senate Enrolled Act 207 will allow approximately 200-300 undocumented students who had enrolled in an Indiana state college or university prior to July 1, 2011 to pay in-state tuition rates. Under this law, those students are now exempt from provisions governing in-state tuition rates in Public Law 171-2011, passed during the legislative session in 2011. SEA 207 passed the Senate with a vote of 35-15 and the House with a vote of 70-30. 

Senators Jean Leising (R), Carlin Yoder (R) and Earline Rogers (D) authored the legislation. Frank Mrvan (D), Greg Taylor (D), John Broden (D) and Lonnie Randolph (D) co-authored it. Representatives Rebecca Kubacki (R) sponsored and Mara Candelaria-Reardon (D) co-sponsored the legislation. 

More Details Released On Senate Immigration Reform Legislation

Registered Provisional Immigrant Status Provides 10-Year Path To Legalization
Senate sponsors of a comprehensive immigration reform proposal have provided more details on their plan to allow millions of currently undocumented aliens to apply for a provisional immigrant status that would put them on a 10-year path to adjust status to lawful permanent resident status. The provisional immigrant status program can only be initiated after the Department of Homeland Security has submitted a comprehensive border security strategy within 180 days of the passage of the legislation. Provisional immigrant status will be available to aliens who have resided in the United States prior to December 31, 2011 and have remained in the U.S. continuously, except for the following categories of ineligible aliens:

• Convicted of an aggravated felony;
• Convicted of a felony;
• Convicted of three or more misdemeanors;
• Convicted of an offense under foreign law;
• Unlawfully voted; and
• Inadmissible for criminal, national security, public health or morality grounds.

Spouses and children of persons in registered provision immigrant (RPI) status can be petitioned as derivative beneficiaries of a principal applicant as long as they are physically present in the U.S. at the time of the filing of the principal's petition. Applicants will be required to pay a $500 penalty fee, in addition to other applicable fees and assessed taxes required to pay for the cost of processing the application. An alien granted RPI status will be eligible to work for any U.S. employer.

The legislation provides the RPI benefit to aliens who were previously present in the U.S. before December 31, 2011 and were deported for non-criminal reasons if they are the spouse or the parent of a U.S. citizen or lawful permanent resident, or a childhood arrival who is eligible for the DREAM Act. Such persons will be allowed to apply for legal re-entry into the U.S. in RPI status.

A one-year application period for RPI status will be provided, which may be extended by DHS for an additional one year. Individuals with removal orders and those in removal proceedings will be eligible to apply for RPI status. An alien's initial RPI status will be a for a term of six years so long as the immigrant does not commit any acts that would render the alien deportable. Another $500 penalty will be assessed to renew the alien's status. No person in RPI status will be eligible to receive any federal means-tested public benefit. RPIs will not be eligible for the premium assistance tax credit provided under federal law or taxpayer-funded subsidies or credits to buy health insurance under the Affordable Care Act.

After an alien has remained in RPI status continuously for a 10-year period, the alien may apply for lawful permanent resident status so long as he or she has:

• maintained continuous physical presence in the country;
• paid all applicable taxes during their RPI status;
• worked in the U.S. regularly;
• demonstrated knowledge of U.S. civics and the English language;
• all persons currently waiting for family and immigrant green card applications as of the date of the enactment of the law have had their priority date become current; and
• a $1,000 fee is paid.

A separate path is provided for DREAM Act and Agricultural Program beneficiaries, who will be eligible for green cards within five years. DREAM Act children will be eligible for citizenship immediately after they become lawful permanent residents.

Eliminates Backlog Of Family And Employment-Based Immigration Cases
A key sticking point with proposal to provide a path to legalization for aliens presently in the country without authorization has been the concern that such a plan would allow unlawful aliens to jump in line ahead of immigrants who play by the rules and immigrate to this country legally. To assuage those concerns, the Senate sponsors are proposing to shorten the current backlog of family and employment-based immigration cases.

The four current preference categories for family-based immigrants will be collapsed into just two categories. The "immediate relative" definition, which currently provides immediate immigrant visas for spouses, children and parents of U.S. citizens, would be expanded to include the spouses and children of lawful permanent residents. The plan should shorten considerably the current wait time for unmarried adult children and married children. The existing category for married children, however, would be amended to include only sons and daughters who are under the age of 31. The Diversity Visa program for awarding lawful permanent residents by a lottery annually to eligible applicants would be eliminated.

The current numerical limit for employment-based immigrants in the following categories is eliminated: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians.

The legislation allocates 40 percent of the worldwide level of employment-based visas to : 1) members of the professions holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees) and 2) aliens who have earned a master’s degree or higher in a field of science, technology, engineering or mathematics from an accredited U.S. institution of higher education and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed.

The legislation increases the percentage of employment visas for skilled workers, professionals, and other professionals to 40 percent, maintains the percentage of employment visas for certain special immigrants to 10 percent and maintains visas for those who foster employment creation to 10 percent.

There is also a new visa category for entrepreneurs that would supplement the current EB-5 alien investor category for alien entrepreneurs who want to immigrate to the U.S. to start up their own businesses.

H-1B Visa Program Expanded
The annual numerical cap of H-1B non-immigrant visas would be increased from 65,000 to 110,000. The current preference for persons with advanced degrees will be increased from 20,000 to 25,000. In future years, the cap could be increased as high as 180,000. The legislation is supposed to include protections to ensure that wagesdoesn't undercut wages currently paid to American workers. In addition, spouses of H-1B workers will automatically be allowed work authorization if their country of origin offers reciprocal benefits. A 60-day transition period will be provided to allow workers to change jobs. In addition, H-1B dependent employers will be hit with higher fees and be required to pay their H-1B workers significantly higher wages. Companies which primarily rely on foreign workers for their U.S. workforce will be prohibited from obtaining additional H-1B visas. H-1B employers will also be required to advertise job openings to American workers before hiring H-1B applicants.

W-Visa Category For Low-Skilled Workers
A new W-Visa category will create opportunities for American employers to hire non-immigrant alien unskilled workers for temporary work. Employers offering jobs in this category would be required to be registered to offer registered positions deemed eligible. Spouses and children of the non-immigrant workers would be allowed to accompany eligible non-immigrant workers. W-Visa holders would be issued initial visas for a period of up to three years, which could be renewed for an additional 3-year period. Wages must be paid based on the prevailing wage rate or the rate paid to employees of similar experience and qualification. The annual cap would begin at 20,000 in the first year and be gradually increased to 75,000 over a four-year period.

Agricultural Jobs
Under a new program, undocument agricultural workers in the U.S. would be allowed to obtain legal status through the issuance of an agricultural card after paying a $400 fine. In addition, a new agricultural guest worker program would be established that would replace the existing H-2A program.

Employment Verification
Over the next five years, all employers would be required to utilize E-Verify system as a condition to hiring workers. All non-citizen workers will be required to produce their photo matching biometric work authorization card.

Out-Of-State Tuitition Waiver For Some Undocumented Aliens Advances

SB 207 would waive out-of-state tuition for undocumented aliens who were enrolled at a public education institution prior to July 1, 2011. Yesterday, the Indiana House of Representatives approved the bill on a 70-23 vote after it was approved by the Senate on a 35-15 vote earlier this session. An immigration enforcement law approved by the General Assembly in 2011 required such persons to pay out-of-state tuition just like other alien students who enter the country legally on F-1 student visas to study at American universities and colleges. Advocates of the measure argue that it unfairly treats the children of aliens who were brought to the U.S. by their parents and have spent most of their life living in the U.S.

H-1B Cap For FY 2014 Already Reached

For the first time since 2008, USCIS announced that it had reached the fiscal year cap on filings for H-1B petitions during the period of the first week of filings in April for petitions with starting employment dates on or after October 1, 2013, the first day of the new fiscal year. USCIS says it received 124,000 petitions during the first week of April. On April 7, the agency used a lottery system to determine which of 65,000 petitions for the general category and 20,000 allotted under the advanced degree exemption limit would be processed for approval. The advanced degree petitions were processed through the lottery system first. Any advanced degree petitions not chosen through the initial lottery were thrown in with the remaining filed petitions to fill the 65,000 openings. USCIS is rejecting and returning all remaining petitions not chosen through the lottery, along with the filing fees. Please note that petitions filed on behalf of current H-1B workers are not subject to the cap.

Federal Judge Permanently Enjoins Enforcement Of Two Provision's Of Indiana's Immigration Enforcement Law

U.S. Federal District Court Judge Sarah Evans Barker has permanently barred the state of Indiana from enforcing two provisions of a law enacted by the Indiana General Assembly in response to what state lawmakers viewed as lax enforcement of the nation's immigration laws by the federal government. Judge Barker had earlier temporarily restrained the state from enforcing two provisions: 1) a provision authorizing law enforcement officers to arrest undocumented aliens under certain conditions; and 2) a provision barring the use of a consular identification card as a valid form of identification. Judge Barker's order today permanently bars enforcement of these two provisions.

Section 20 of the law in question allowed law enforcement officers to, among other things, arrest a person if an immigration court had issued a removal order against the person, the Department of Homeland Security had issued a Notice of Action or detainer against the person, or if there was probable cause to believe the person had been indicted for or convicted of one or more aggravated felonies. Judge Barker's order found that Section 20 authorizes the warrantless arrest of persons for matters of conduct that are not crimes, thereby contravening the Fourth Amendment to the United States Constitution.

Many undocumented aliens will be perplexed by this ruling based on their past experiences. That's because local law enforcement officials arrest undocumented aliens for minor traffic or criminal offenses all the time in Indiana and detain them under so-called ICE holds. When a family member or friend attempts to bail the person out of jail, they often learn that the person cannot be released because ICE has placed a hold on the person's release after being notified the person was in custody by the local law enforcement agency which made the arrest. The person winds up sitting in jail until ICE officers pick them up and take them to another facility for processing to determine if any further immigration action should be taken against them, something that is supposed to occur within 48 hours of the time the person would otherwise be allowed to be released from jail. This often takes longer, particularly if the person is arrested over a holiday or weekend. In either case, the person is being detained based on a suspicion of violating an immigration law. Non-enforcement of this provision of the state law will have no practical impact in many instances as long as the federal government's current "ICE hold" policy continues to be enforced.

As to the barring of the use of consular identification cards, Judge Barker determined that the state had no rationally-based interest in prohibiting their use and the enforcement of the law would violate substantive due process rights. Judge Barker also dismissed the plaintiffs' civil rights claims, noting that their claims against the City of Indianapolis were not yet ripe for adjudication because they faced no hardship, immediate injury or prejudice during the pendency of their lawsuit.   

Indiana Legislation Advances To Allow In-State Tuitition For Some Undocumented Students

A state immigration enforcement law passed by the Indiana General Assembly in 2011 bars undocumented alien students from receiving the benefit of in-state tuition rates at public universities and colleges. A bill making its way through the legislature this year would make an exception for those undocumented students who were enrolled in educational institutions on or before July 1, 2011. SB 207 cleared the Indiana Senate by a vote of 35-15 yesterday and now moves to the House of Representatives for consideration. You can track the progress of SB 207 by clicking here. Note that international students who entered the U.S. on F-1 student visas will still be subject to the out-of-state tuition rates applicable to non-resident students at state colleges and universities. SB 207 will only apply to undocumented aliens who were residing in Indiana and enrolled in an educational institution on or before July 1, 2011.

An interesting challenge will be confronted as thousands of Indiana undocumented aliens who entered the U.S. as children are approved for deferred action under a new program implemented last year by USCIS. Under deferred action status, these individuals will be permitted to legally obtain work authorization and obtain driver's licenses in Indiana. Although the federal regulations authorizing the deferred action program emphasizes that approved beneficiaries do not obtain legal immigration status and may still be subject to removal from the country under appropriate circumstances, it does confer a quasi-legal status on them to remain in the U.S. legally and work here. This will present a situation where you have a large class of residents living and working within the state legally for lengthy periods of time but who would be required to pay out-of-state tuition to attend the state's colleges and universities.

ICE Releasing Some Detainees Due To Budget Concerns

As the federal government approaches a deadline for mandatory budget cuts on March 1, 2013 under a previously-enacted budget sequestration act, ICE announced yesterday that it has released some individuals currently being detained for immigration-related violation. Here's the statement:

"As fiscal uncertainty remains over the continuing resolution and possible sequestration, ICE has reviewed its detained population to ensure detention levels stay within ICE’s current budget. Over the last week, ICE has reviewed several hundred cases and placed these individuals on methods of supervision less costly than detention. All of these individuals remain in removal proceedings. Priority for detention remains on serious criminal offenders and other individuals who pose a significant threat to public safety.”

It's unclear at this point which detention facilities these individuals are being released and the total numbers being released. The statement cautions that persons released will continue to remain in removal proceedings.