US immigration

[ANALYSIS] What the US Citizenship Act of 2021 will mean for Filipinos and Fil-Ams

Jath Shao
[ANALYSIS] What the US Citizenship Act of 2021 will mean for Filipinos and Fil-Ams

Graphic by Raffy de Guzman

'For Fil-Ams, the ulam of this bill comes in its focus on the family'

President Joe Biden started reversing the previous administration’s xenophobic policies in the first few hours of his first day on the job, issuing executive orders to repeal the Muslim ban and stop construction on the wall – on which Trump spent about $15 billion of taxpayer money to construct 450 miles, only 47 miles of which were new. He ended the Trump administration’s unconstitutional attempt to exclude undocumented immigrants from the Census, which impacts the apportionment of resources and Congressional seats. He revoked a Trump executive order that directed harsh and extreme immigration enforcement.

Tomorrow, on his first full day at work, Biden will present Congress with his US Citizenship Act of 2021, with the goal of restoring humanity and American values to the immigration system. If passed, it would be the most significant immigration reform since the Immigration Reform and Control Act (IRCA) of 1986 during the Reagan administration. Here’s an explainer of the portions that are most relevant for Filipinos and Fil-Ams.

Path to citizenship

People who were in the US on or before January 1 of this year that pass a criminal and security background check and pay taxes can apply for temporary legal status, and can apply to become legal permanent residents in 5 years and US citizens in 3 more years, assuming they continue to meet all the requirements. 

There are an estimated 400,000 undocumented Fil-Ams, including an estimated 4,000 Fil-Am DACA recipients who could immediately apply for green cards, with a 3 year wait to apply for citizenship. The bill also seeks to help those who were deported under Trump, as it includes an exception for people who were deported after his inauguration on January 20, 2017, provided they had been in the US for at least 3 years before that.

Grow the economy

The employment-based immigration proposals that will most impact Fil-Ams make it easier for people with advanced degrees in science, technology, engineering, or math (STEM) to stay in the US. Dependents of H-1B work visa holders will be allowed to apply for work authorization, and their children will be prevented from “aging out.” This keeps families together. Previously, children who turned 21 were generally on their own, and could not rely on dependent status from their parents for their immigration status.

Access to green cards will also be improved for workers in lower-wage sectors. In a related note – Filipinos just became eligible for H-2B temporary non-agricultural worker visas again, after a two-year ban because of too many TNTs. H-2Bs are issued for seasonal or peak-need jobs that do not typically lead to permanent residency, but it is possible for an employer to promote a former H-2B worker to a higher position and sponsor them through the PERM process.

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Protect the workers and the vulnerable

Labor, employment, and civil rights are important considerations. Workers who suffer serious labor violations or workplace retaliation and cooperate with government agency investigations can be eligible for U status – which protects victims of criminal activity from deportation. Previously, most U applicants usually had to cooperate with law enforcement in solving crimes. 

Protections are also increased for victims of trafficking (T status) or victims of domestic abuse by US citizens or permanent resident spouses. Although the latter is called VAWA after the Violence for Women Act, you don’t have to be a woman to apply for it, as the Biden administration restores American respect for sexual and gender identity.

The immigration courts will get more training, more funding, and more discretion for judges and adjudicators. The immigration courts are not Article III courts like almost every other court in the US, but fall under the Department of Justice, with the Attorney General as a one-person Supreme Court. The previous administration and Attorneys General Sessions and Barr regularly used their discretion to reopen and decide cases how they personally wanted, taking away judges’ power to decide to close cases or grant relief. In the interest of fairness and efficient resolution, children and other vulnerable people will get legal orientation or even legal counsel.

Focus on the family

But for Fil-Ams, the ulam of this bill comes in its focus on the family. Biden proposes to clear the backlogs, end the long wait times, and increase per-country caps. Since 1990, no country can receive more than 7% of green cards, and this has led to Filipinos with approved petitions having to wait for up to 20 or 30 years for their visa numbers to become available.

Since IIRAIRA in 1996, people who were unlawfully present in the US for more than 6 months could be barred for 3 years, and people who had over a year of unlawful presence were barred for 10 years. While these bars could sometimes be waived due to extreme hardship to a US citizen or permanent resident spouse or parent, the US Citizenship Act of 2021 would eliminate these bars, removing a huge barrier to family reunification. 

Discrimination against LGBTQ+ families would be eliminated, and there would be more protection for orphans, widows, and children of US citizens and permanent residents. Filipino World War II veterans and their families are on the agenda as well, as a program for their benefit was ended in December 2020 based on a Trump order from 2017.

But the biggest thing for Fil-Ams would be this – it allows people with approved family-based petitions to temporarily join their families in the US while waiting for their green cards. This would be a game changer that eliminates the decades-long wait for Filipina/x/os to become Fil-Ams.

Don’t forget the elephant in the room

One important caveat to all the above is that this legislation still has to pass through both houses of Congress. While Democrats have a majority in the House of Representatives and a de facto majority in the Senate, as Vice President Kamala Harris breaks any 50/50 ties, Republicans are almost certainly going to oppose many of the provisions above. 

The events of January 5, when Democrats won both run-off elections in Georgia for the last two Senate seats, and of January 6, when the bubble popped, both increase the possibility that this bill makes it through. It will still probably come down to the most conservative Democrat (Joe Manchin of West Virginia) and the most liberal Republican (Lisa Murkowski of Alaska) and others in the middle whose names we will soon become familiar with.

If less than 10 Republican senators sign on, then we might see a showdown over the filibuster, which prevents legislation from passing the Senate unless at least 60 of the 100 senators agree. After a decade of the Democrats attempting to negotiate the center and the Republicans using every legal (if not always ethical) method to seize power and push to the right, it will be interesting to see whether this proposal will lead to the seemingly inevitable nuking of the filibuster for legislation, or if enough Republicans will work with the Democrats to pass these reforms. Stay tuned for more explainers as more information is released. – Rappler.com

Jath Shao is a US immigration attorney who helps people unite with their families and loved ones. Contact jath@lawfirm4immigrants.com for any questions or concerns about US immigration.

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