By Nolan Rappaport and Greg Siskind

At a hearing on February 14, 2007,[i] before the House Immigration Subcommittee[ii], Emilio T. Gonzalez, the Director of the U.S. Citizenship and Immigration Services (USCIS), testified that USCIS needs to increase the fees for immigration benefit applications by an average of approximately 86 percent.   Director Gonzalez explained that USCIS needs these additional funds to meet its current mission requirements.  According to Dr. Gonzalez, “The alternative – asking USCIS to continue to charge fees that do not cover operational costs – would have disastrous consequences resulting in a less secure and more inefficient immigration system.  In addition, it would seriously degrade service delivery and cause applicants to wait longer for benefits that are crucial to their lives and livelihood.”[iii]

Unfortunately, this financial difficulty goes beyond USCIS’ resources to process its current caseload of benefit applications.  The November 2006 elections seem to have brightened the prospects for passage of a major immigration reform bill that will likely include a legalization program of unprecedented size.  While estimates vary, most experts anticipate that this program would provide access to lawful status for at least 12 million immigrants who are presently living in the United States without legal status.  This figure does not include the anticipated guest worker program or the anticipated increases the bill would make in both family-based and employment-based visas. 

The immigration benefits application processing system presently is almost entirely funded by the fees charged by USCIS. This is why Dr. Gonzalez is proposing a fee increase to meet USCIS’ operational expenses rather than asking for an appropriation of the addition funds that USCIS needs. 

While the drafters of the various legalization proposals anticipate that the legalization applicants would pay application fees that would be more than enough to provide the funds needed to process their applications, the fact remains that USCIS is going to need funds for start-up costs before it can begin to process the millions of applications that will no doubt be filed once the application process opens.  USCIS will have to hire and train a large number of additional personnel, purchase or lease additional office equipment, design software systems, lease additional office space, and so on. The funds for these start up-costs could be appropriated, but this would be a departure from the fee-base funding presently used to cover the cost of processing the benefit applications. 

Even if the funds were appropriated, the mammoth task of rolling out a legalization program along the lines being discussed would take time. In fact, it could take USCIS years to fully process the applications for the millions of individuals expected to apply. The proposals call for extensive background checks, English examinations, medical examinations, payment of back taxes, verification of residency in the US , etc. There are strong policy arguments in favor of these requirements, but the goal of beginning to integrate these people into American society would be delayed an intolerably long period.

We propose supplementing the legalization program with a pre-registration program that would provide modest interim benefits and also raise funds for the start-up costs of the larger legalization program without requiring an appropriation.  The system would be offered online in order to quickly register the expected mass number of applicants. Under this system, the legalization applicants would be encouraged to pre-register on the internet for the legalization program. The pre-registration fee would be a partial prepayment of the anticipated fee for the later legalization application.  For instance, if the registration fee is 40 percent of the fee for the legalization application, the person registering for the program would receive a 40 percent credit towards payment of the fee for the legalization application.        

Applicants who register for the legalization program would obtain a temporary, very restricted new form of lawful status.  A status document with a short expiration date (perhaps thirty or sixty days) would be downloaded and printed, and then later a more secure card that could be renewed periodically would be mailed to the registrant.  This would provide a temporary lawful status and work authorization to encourage people to “come out of the shadows.” Immigration restrictionists may object to even this limited benefit, but the reality is that the undocumented immigrants who would benefit from this program already are living and working in the United States .  They would not be provided with the other benefits of a legalization program, such as being able to travel in and out of the United States or being able to bring their families here to live with them.  Also, the limited lawful status would be temporary.  It would terminate after a specified period of time if the alien does not apply for legalization or when the registrant completes the legalization application process and his or her application is either granted or denied.

The program would be coupled with severe penalties for fraud and willful misrepresentation to ensure that individuals who know they are ineligible do not attempt to pre-register. Moreover, the pre-registration documents themselves would not be permitted to be used for identification purposes. For example, employers would still need to see a photo identification (like a passport) to comply with employment verification rules during the pre-registration phase. All of the grounds of inadmissibility that would apply in the legalization context – criminal activity, security risks, etc. – would apply to this program as well.

The status we are proposing is similar to Temporary Protected Status (TPS), which is a temporary remedy that provides a safe haven for aliens who fleeing, or are reluctant to return to, potentially dangerous situations. TPS is blanket relief that may be granted under the following conditions: there is ongoing armed conflict posing serious threat to personal safety; a foreign state requests TPS because it temporarily cannot handle the return of nationals due to environmental disaster; or there are extraordinary and temporary conditions in a foreign state that prevent aliens from returning, provided that granting TPS is consistent with U.S. national interests.[iv]

To obtain TPS, eligible aliens mail in an application with a processing fee and then receive registration documents and work authorization. The TPS regulations specify grounds of inadmissibility that cannot be waived, including those relating to criminal convictions and the persecution of others.[v]  TPS is different than the status we are proposing in that the aliens who obtain TPS are not on an immigration track that leads to permanent residence or citizenship.  In fact, the TPS provision in the INA states that a bill or amendment that would provide for the adjustment to lawful temporary or legal permanent resident (LPR) status for any alien receiving TPS requires a supermajority vote in the Senate (i.e., three-fifths of all Senators) voting affirmatively.[vi]

Pre-registration would solve the “chicken and egg” problem of how to start a massive legalization program quickly without having to burden taxpayers and without making applicants and employers wait years to begin participating. The program could handle millions of applications and also ensure that the enforcement efforts contemplated under the CIR proposals do not ensnare precisely the people a legalization program is intended to cover while those individuals are waiting on the program’s implementation.  

Nolan Rappaport was the immigration counsel for the Democrats when they were in the minority.  He has more than 30 years of experience as an immigration lawyer, including 7 on the House Judiciary Committee. He has written numerous immigration bills, including the Rapid Response Border Protection Act, H.R. 4044; the Foreign Anti-Sex Offender Protection Act, H.R. 5610; the Save America Comprehensive Immigration Act, H.R. 2092; the Commercial Alien Smuggling Elimination Act, H.R. 2630; the Comprehensive Immigration Fairness Reform Act, H.R. 3918; and the Tsunamis Temporary Protected Status Act, H.R. 60.

Greg Siskind is a partner with Siskind Susser Bland and has been practicing immigration law since 1990. Greg is the author of several books including LexisNexis’ annually published J-1 Visa Guidebook and the soon to be released third edition of the American Bar Association’s Lawyers Guide to Marketing on the Internet. In 1994, he created www.visalaw.com, the first immigration law firm web site in the world and is the editor of Siskind’s Immigration Bulletin, a newsletter that is distributed to more than 40,000 subscribers each week. Greg was the first immigration lawyer ever photographed for the cover of the American Bar Association Journal and he was recently named by Chambers and Partners as one of the top 25 immigration lawyers in the US . He can be reached at gsiskind@visalaw.com.

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