Special Subcommittees on Undocumented Alien Students in the Commonwealth
September 3, 2003
At their second joint meeting,
the subcommittees received an overview of immigration requirements by
an attorney specializing in immigration law.
of the federal governmentthe Departments of Homeland Security (home
of the Bureau of Citizenship and Immigration Services (BCIS), the Bureau
of Immigration and Customs Enforcement (BICE), and the Directorate of
Border and Transportation Security); Labor (state employment security
agencies); and State (through the National Visa Center and consular posts)are
involved in the application and enforcement of immigration law in the
United States. Supporting the implementation and interpretation of federal
immigration statutes and regulations are BCIS memoranda, field manuals,
and operating instructions; Board of Immigration Appeals (BIA) decisions;
Administration Appeals Office (AAO) decisions; and federal court rulings.
Upon arrival in
the United States, persons who are not U.S. citizens must typically present
a passport and a visa; there are approximately 80 types of visas (identified
through an alphabet soup of lettered designations) for nonimmigrantspersons
not seeking permanent residence and who may include government officials,
vacationing visitors, temporary workers, foreign media, exchange visitors,
athletes and entertainers, religious workers, and students. Two visas
address this last category: the F visa is issued to nonimmigrant
students pursuing academic studies, while nonimmigrant students in nonacademic
or vocational programs receive the M visa. Central to the
nonimmigrant visa is its limited nature, as it restricts the duration
of stay as well as activities in which the holder may engage, whether
tourism, education, or employment.
to become permanent residents of the United States must apply for permanent
resident status. These persons remain foreign nationals; they are not
U.S. citizens but are deemed immigrants. Grants of this status, and issuance
of the permanent resident or green card, may be based upon
employment, marriage to a U.S. citizen, refugee status, or other factors.
Grants of green cards and permanent resident status are subject to quotas
defined by various categories and native countries; the backlog in immigration
processing is due in part to the great demand that exceeds the supply
of slots available in the various categories or nationalities.
Persons who have entered the United States unlawfully cannot subsequently
secure nonimmigrant or temporary visa status; the only route open to them
is that of permanent residency and the green card. The individual
may seek green card status through a family-based process or through a
qualifying employer. However, permanent residency through this latter
route requires satisfaction of certain skills and educational qualifications
that would not be applicable to undocumented students.
students in the Commonwealth who might wish to legalize their status must
have a family member who is eligible to petition for a green card on their
behalf. The process for an undocumented student would involve two steps:
the qualifying family member would first file an application with BCIS,
with an estimated processing period of six months to two years. The student
completes the process by filing for an adjustment of status
with BCIS, with an additional processing period that may last from six
months to three years. In addition, a number of restrictions may require
the individual to leave the United States between these two steps as a
penalty for illegal status.
While the federal
government has instituted various periods of amnesty for certain groups
of illegal aliens in the past, these windows are not currently
available. Special legislation, such as that currently under consideration
by Congress, may be necessary to assist most undocumented students seeking
to legalize their status.
The effects of September
11, 2001, on immigration law have largely been evidenced in the processing
of applications. While there have been changes in immigration law and
regulations, it is the processing of applications that has become more
intense, as scrutiny has increased. The implementation of SEVIS, an Internet-based
system designed to maintain information on nonimmigrant students and exchange
visitors and their dependents, provides educational institutions and sponsors
a mechanism for transmitting event notificationsactions
that may prompt a change in a visa holders statusand other
information to BCIS and the Department of State. The system, however,
only addresses students and visitors who are in the United States lawfully;
undocumented aliens cannot be tracked.
on an active and sophisticated black market for green cards
and social security numbers (SSN). By law, employers must file to withhold
federal income taxes for employees through the employees SSN; however,
in the case of some undocumented employees, the taxpayer identification
number has been substituted erroneously or illegallyby the employer
or employee. In addition, SSNs have been misappropriated in some filings,
resulting in claims against the rightful owner of the SSN for under-reporting
of income. Refunds for overpayment of income taxes require a SSN as well,
thereby precluding the undocumented individuals from claiming refunds.
A figure of $16 billion in unclaimed tax refunds was cited; it was suggested
that a great portion might be refunds for undocumented aliens.
Also noted in discussion
was the possibility of educating high school students regarding legalization
of immigrant status and penalties for institutions of higher education
that knowingly grant in-state tuition to undocumented alien students.
Subcommittee members are to submit any questions regarding immigration
law to staff for submission to the federal Bureau of Immigration and Customs
Enforcement (BICE) to receive responses for review at the subcommittees
final meeting on Tuesday, October 7, to be hosted by the Senate subcommittee,
chaired by Senator Mims.
The Hon. Robert
Kathleen G. Harris
Norma E. Szakal
Division of Legislative Services
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