Special Subcommittees on Undocumented Alien Students in the Commonwealth

September 3, 2003
Richmond

At their second joint meeting, the subcommittees received an overview of immigration requirements by an attorney specializing in immigration law.

Three departments of the federal government—the 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.

Nonimmigrants

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 nonimmigrants—persons 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.

Immigrants

Individuals seeking 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.

Undocumented Students

Therefore, undocumented 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 notifications”—actions that may prompt a change in a visa holder’s status—and 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.

Discussion

Discussion focused 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 employee’s SSN; however, in the case of some undocumented employees, the taxpayer identification number has been substituted erroneously or illegally—by 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.

Chairman:
The Hon. Robert Tata

For information, contact:
Kathleen G. Harris
Norma E. Szakal
Division of Legislative Services

THE RECORD