On February 18, 2021, Senator Menendez (D-NJ) and Representative Sánchez (D-CA) introduced the U.S. Citizenship Act of 2021 in the U.S. Senate and U.S. House of Representatives.  The companion bills are identical in their terms and are derived from President Biden’s “day one” legislative proposal for implementation of his immigration policy goals and initiatives. 

As a preliminary matter, the U.S. Citizenship Act updates the terminology used to refer to foreign nationals in the United States from “aliens” to “noncitizens.”  The new term “noncitizen” will be substituted into all immigration laws in place of the term “alien.” 

Most critical among the bills’ substantive provisions are those that would provide an earned path to lawful status, and later permanent residency and citizenship, for undocumented immigrants. Also critical are provisions that would change the way the annual immigrant visa quota is allocated and would “recapture” unused immigrant quota numbers going back two decades. These provisions alone would eliminate much of the backlog of intending immigrants from India and China, who experience the longest wait times for employment-based permanent residency. 

Creation of New “Lawful Prospective Immigrant” Status for Undocumented Noncitizens 

The U.S. Citizenship Act includes a provision, which if passed, would create a new status valid for six years, extendable for another six years, which affords lawful status and work authorization to certain undocumented non-U.S. citizens. After at least five years as a Lawful Prospective Immigrant, a noncitizen who has met all federal tax obligations and meets certain requirements with respect to physical presence in the United States becomes eligible to apply for adjustment of status to U.S. Lawful Permanent Resident Status. 

Lawful Permanent Residency for DACA, TPS Recipients, and Agricultural Workers 

Other provisions of the U.S. Citizenship Act would allow DACA recipients, TPS recipients and certain agricultural workers to apply for adjustment of status to U.S. Lawful Permanent Resident Status. DACA recipients are those who were brought to the United States as children and applied for the Obama Era “Deferred Action for Childhood Arrivals” (DACA) program seeking protection from immigration enforcement action. TPS recipients are those who have been granted “Temporary Protected Status” in the United States due to conditions in their home countries that make a safe return difficult.  Citizens of several countries currently benefit from Temporary Protected Status in the United States, but the most populous are Hondurans, El Salvadorans, and Nicaraguans. Noncitizen agricultural workers in the United States would be eligible to apply for permanent residency if they have performed agricultural work for at least 400 workdays out of the five years immediately preceding their application. These categories of noncitizens normally would have no pathway to permanent residency absent special legislation such as the U.S. Citizenship Act. 

Increase and Change in Allocation of Immigrant Visa Quota 

Various provisions of the U.S. Citizenship Act directly bear on the availability and allocation of employment-based immigrant visas. The proposed legislation would increase the annual quota on employment-based immigrants from 140,000 to 170,000 and would provide permanent residency outside the quota to beneficiaries of approved immigrant visa petitions that have been approved for at least ten years. These provisions would eliminate much of the lengthy backlog of applicants born in India and China awaiting availability and allocation of an immigrant visa under the quota system.  

Additionally, the U.S. Citizenship Act would eliminate the per-country limitations on allocation of immigrant visas under the annual quota. Eliminating per-country limitations would reduce the wait times for Indian-born applicants going forward regardless of the proportion of the overall annual quota allocated each year to those applicants. A side-effect would be the creation of wait times for applicants from other countries who have traditionally experienced little or no wait for an immigrant visa due to the relatively low immigration rates from those countries to the United States. 

Other Provisions 

The U.S. Citizenship Act includes many other provisions of varying impact on employment-based immigration.  Such provisions include work authorization for H-4 spouses and children, permanent residency for international students graduating from Science, Technology, Engineering, and Math (STEM) Ph.D. programs, and an increase in Diversity Visa Lottery numbers. 

Next Steps in Legislative Process 

Currently the companion bills introduced as the U.S. Citizenship Act in the U.S. Senate and U.S. House of Representatives are simply bills. Both houses must consider, debate, and pass their respective bills before they may be signed into law. If the chambers pass different versions of the bill, reconciliation would be required. It is probable that there will be various compromises on some or all provisions, either by amendments or during the reconciliation process, which might result in a quite different bill than the one initially introduced. 

Key Takeaways 

Some version of the U.S. Citizenship Act is likely to pass, as Democrats control both chambers of Congress; however, the final legislation may differ from the proposed bills. Should the final legislation pass with only minor modifications, the U.S. Citizenship Act would be the most major and impactful piece of immigration legislation in decades. Upon or shortly after passage, the Act would result in a significant increase in the pool of workers considered U.S. workers, relief for millions of undocumented noncitizens and DACA and TPS recipients, and new immigrant classifications and pathways for future immigrants. With major modifications and compromise, some or all of these provisions may change, and other provisions relating to immigration enforcement may be introduced. It is also possible that various provisions could pass as separate, stand-alone legislation while debate continues or is tabled on the broader Act as a whole. 

As always, Foster LLP will continue to monitor legislative efforts that would have an impact on immigration benefits and will make future updates available via Foster Immigration Updates and on the Foster website at www.fosterglobal.com.