Summary of the Secure America and Orderly Immigration Act

On May 12, 2005, S.1033/H.R. 2303, also known as Secure America and Orderly Immigration Act of 2005 (SAOIA of 2005), was introduced to address family and business concerns and, at the same time, alleviate national security and the problems in the U.S. immigration system.

In essence, the bill provides for:

• A strategy for border security,

• Funding to alleviate cost of detaining undocumented aliens,

• H-5A visas for essential workers with an initial limit of 400,000 visas,

• A new mechanism to confirm eligibility of aliens to work, which broadens the Department of Labor’s authority to conduct random audits to ensure employer compliance, protect foreign workers, and enhance fines for unlawful employment practices,

• Establishing labor migration facilitation programs with foreign governments whose citizens participate in the new temporary worker program,

• Promote family unity and reduce backlogs by removing immediate relatives from the annual cap on family-based immigration, reducing the income requirement for family-based immigrant petitioners, increasing the quota for employment-based immigration and increasing the per country limit for both employment-based and family-based petition,

• Earned legalization through H-5B visas for undocumented immigrants and their immediate family members present in the U.S. when this bill was introduced on May 12, 2005,

• Protection of immigration fraud victims and potential eligibility for U visas for those who were harmed to a great extent by unauthorized practitioners of law.

• Promote access to health care by authorizing reimbursement to health care facilities providing emergency care to undocumented aliens and holders of H-5A and H-5B visas.



Federal legislators need to know that residents in their districts support

The Secure America and Orderly Immigration Act of 2005 (SAOIA of 2005), S.1033/H.R. 2303. To help this bill to move forward, please contact:

Senator Durbin: (312) 353-4952

Senator Obama: (312) 886-3506

White House: (202) 456-1414

To send an e-mail to your representatives, you may access e-mail addresses by visiting www.icirr.org and click “TAKE ACTION”.



Why Can I Not Adjust Status?

On a daily basis, we lawyers hear from clients asking “How come my friend was allowed to apply for adjustment of status – we have the same status?” Individuals may not be aware of the distinction between their circumstances to those of others. It could be that others have the protection of Section 245(i) or the Child Status Protection Act (CSPA). It could be that there are “extreme hardship” conditions allowing the adjustment of status of one who would otherwise be ineligible for immigration benefit. The most important thing to do, first of all, is to consult with and, preferably, seek the assistance of an immigration practitioner.

Below is a list of common situations, under the Immigration and Nationality Act, wherein the applicant is ineligible for adjustment of status (green card application) unless certain exceptions or waivers apply -

• Fiancées can apply for the green card only by marrying the petitioner. If marrying someone other than the petitioner, the fiancée cannot adjust status and is REQUIRED to exit and apply for an immigrant visa at the consular level.

• J-1 visa holders who entered for medical training, those whose exchange visitor status is funded by the U.S. or foreign government, or those whose training is one of those needed in the foreign country of origin, UNLESS a waiver of the two-year foreign residency is obtained. Note that some J-1 visa holders are not subject to the two-year foreign residency requirement and may immediately change or adjust status.

• Crewmembers UNLESS grandfathered under Section 245(i).

• Those who entered without inspection UNLESS grandfathered under Section 245(i).

• Employment-based applicants for the green card who have violated their status for more than six months UNLESS they are grandfathered under Section 245(i).

• Family-based applicants who have become unlawfully present/violated their status UNLESS covered by Section 245(i) or the applicant is an “immediate relative” or “special immigrant,” as defined by the Immigration and Nationality Act

• Those who used fraudulent documents or engaged in misrepresentation UNLESS eligible for a 601 waiver, by proving hardship to a qualifying U.S. citizen or lawful permanent relative.

• Those who failed to honor a voluntary departure order or failed to appear for a removal hearing CANNOT obtain any immigration benefit for at least ten years.

• Those with outstanding removal orders UNLESS the case is reopened

• Those who were previously removed (deported) or inadmissible because of the nature of a crime committed by the applicant.

The above is a list of the common grounds for ineligibility to adjust status. Other grounds fro ineligibility may apply. As such, it is best to consult with an immigration law practitioner (not with an unauthorized notario) before filing one’s application.

What Is The Proper Timing for Changing to H1B, H2B of Other Non-Immigrant Status?

As most readers are now aware, the H1B (for professional positions) and H2B (for positions not requiring degrees) visas are limited to 65,000 and 66,000 respectively. Last year, these quotas were used up even before the start of the fiscal year on October 1.

In order to be assured of making the quota, petitions could be filed as early as six months before the start of the fiscal year. A petition can be filed as early as April 1, six months prior to the beginning of the fiscal year on October 1.

Note that the recent H2B regulations would allow one-half of the quota to be allocated for the first part of the fiscal year and the other half to be used in the middle of the fiscal year. Note further that there are additional 20,000 visas available for H1B visa applicants who possess advanced degrees obtained from U.S. institutions of higher learning. In addition to the 65,000 and 20,000 H1B visas, there are applicants who are exempt from these quotas.

Those who enter the U.S. on another non-immigrant status can change their status to H1B or H2B but their entry should be properly timed such that they are able to maintain status until the visa becomes available. Those who will change status within the U.S. should be careful not to file prematurely otherwise the Immigration Service will conclude that the applicant had a “pre-conceived intent” to immigrate (which may be contrary to one’s non-immigrant status).

Again, it is best to play safe and plan ahead by consulting with an immigration practitioner early, as well as properly timing one’s travel and application to change status.