bseoima §2211 (2013): REQUIREMENTS FOR BLUE CARD STATUS

a.

REQUIREMENTS FOR BLUE CARD STATUS.—Notwithstanding any other provision of law, the Secretary, after conducting the national security and law enforcement clearances required under section 245B(c)(4), may grant blue card status to an alien who—

1.

A. performed agricultural employment in the United States for not fewer than 575 hours or 100 work days during the 2-year period ending on December 31, 2012; or

[Flake3/Schumer]

B.: is the spouse or child of an alien described in subparagraph (A) and was physically present in the United States on or before December 31, 2012, and has maintained continuous presence in the United States from that date until the date on which the alien is granted blue card status, with the exception of absences from the United States that are brief, casual, and innocent, whether or not such absences were authorized by the Secretary;
[end]

2.

submits a completed application before the end of the period set forth in subsection (b)(2); and

3.

is not ineligible under paragraph (3)or (4) of section 245B(b)of the Immigration and Nationality Act (other than a nonimmigrant alien admitted to the United States for agricultural employment described in section 101(a)(15)(H)(ii)(a) of such Act.

b.

APPLICATION.—

1.

IN GENERAL.—An alien who meets the eligibility requirements set forth in subsection (a)(1), may apply for blue card status and that alien’s spouse or child may apply for blue card status as a dependent, by submitting a completed application form to the Secretary during the application period set forth in paragraph (2) in accordance with the final rule promulgated by the Secretary pursuant to subsection (e).

2.

SUBMISSION.—The Secretary shall provide that the alien shall be able to submit an application under paragraph (1)—

A.: if the applicant is represented by an attorney or a nonprofit religious, charitable, social service, or similar organization recognized by the Board of Immigration Appeals under section 292.2 of title 8, Code of Federal Regulations; or
B.: to a qualified entity if the applicant consents to the forwarding of the application to the Secretary.

3.

APPLICATION PERIOD.—

A.: INITIAL PERIOD.—Except as provided in subparagraph (B), the Secretary may only accept applications for blue card status for a 1-year period from aliens in the United States beginning on the date on which the final rule is published in the Federal Register pursuant to subsection (f) , except that qualified nonimmigrants who have participated in the H–2A Program may apply from outside of the United States.
B.: EXTENSION.—If the Secretary determines, during the initial period described in subparagraph (A), that additional time is required to process applications for blue card status or for other good cause, the Secretary may extend the period for accepting applications for an additional 18 months.

4.

APPLICATION FORM.—

A.: REQUIRED INFORMATION.—The application form referred to in paragraph (1) shall collect such information as the Secretary determines necessary and appropriate.
B.: FAMILY APPLICATION.—The Secretary shall establish a process through which an alien may submit a single application under this section on behalf of the alien, his or her spouse, and his or her children, who are residing in the United States.
C.: INTERVIEW.—The Secretary may interview applicants for blue card status to determine whether they meet the eligibility requirements set forth in subsection (a)(1).

5.

ALIENS APPREHENDED BEFORE OR DURING THE APPLICATION PERIOD.—If an alien, who is apprehended during the period beginning on the date of the enactment of this Act and ending on the application period described in paragraph (3), appears prima facie eligible for blue card status, the Secretary—

A.: shall provide the alien with a reasonable opportunity to file an application under this section during such application period; and
B.: may not remove the individual until a final administrative determination is made on the application.

6.

SUSPENSION OF REMOVAL DURING APPLICATION PERIOD.—

A.

PROTECTION FROM DETENTION OR REMOVAL.—An alien granted blue card status may not be detained by the Secretary or removed from the United States unless—

i.: such alien is, or has become, ineligible for blue card status ; or
ii.: the alien’s blue card status has been revoked .

B.

ALIENS IN REMOVAL PROCEEDINGS.— Notwithstanding any other provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.)—

i.

if the Secretary determines that an alien, during the period beginning on the date of the enactment of this section and ending on the last day of the application period described in paragraph (2), is in removal, deportation, or exclusion proceedings before the Executive Office for Immigration Review and is prima facie eligible for blue card status under this section—

I.: the Secretary shall provide the alien with the opportunity to file an application for such status; and
II.: upon motion by the Secretary and with the consent of the alien or upon motion by the alien, the Executive Office for Immigration Review shall—
aa.: terminate such proceedings without prejudice to future proceedings on any basis; and
bb.: provide the alien a reasonable opportunity to apply for such status; and

ii.

if the Executive Office for Immigration Review determines that an alien, during the application period described in paragraph (2), is in removal, deportation, or exclusion proceedings before the Executive Office for Immigration Review and is prima facie eligible for blue card status under this section—

I.: the Executive Office of Immigration Review shall notify the Secretary of such determination; and
II.: if the Secretary does not dispute the determination of prima facie eligibility within 7 days after such notification, the Executive Office for Immigration Review, upon consent of the alien, shall—
aa.: terminate such proceedings without prejudice to future proceedings on any basis; and
bb.: permit the alien a reasonable opportunity to apply for such status.

C.

TREATMENT OF CERTAIN ALIENS.—

i.

IN GENERAL.—If an alien who meets the eligibility requirements set forth in subsection (a) is present in the United States and has been ordered excluded, deported, or removed, or ordered to depart voluntarily from the United States under any provision of this Act—

I.: notwithstanding such order or section 241(a)(5)of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)), the alien may apply for blue card status under this section; and
II.: if the alien is granted such status, the alien shall file a motion to reopen the exclusion, deportation, removal, or voluntary departure order, which motion shall be granted unless 1 or more of the grounds of ineligibility is established by clear and convincing evidence.

ii.

LIMITATIONS ON MOTIONS TO REOPEN.—The limitations on motions to reopen set forth in section 240(c)(7)of the Immigration and Nationality Act (8 U.S.C. 1229a(c)(7)) shall not apply to motions filed under clause (i)(II).

D.

PERIOD PENDING ADJUDICATION OF APPLICATION.—

i.

IN GENERAL.—During the period beginning on the date on which an alien applies for blue card status under this subsection and the date on which the Secretary makes a final decision regarding such application, the alien—

I.: may receive advance parole to reenter the United States if urgent humanitarian circumstances compel such travel;
II.: may not be detained by the Secretary or removed from the United States unless the Secretary makes a prima facie determination that such alien is, or has become, ineligible for blue card status ;
III.: shall not be considered unlawfully present for purposes of section 212(a)(9)(B)of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)); and
IV.: shall not be considered an unauthorized alien (as defined in section 274A(h)(3)of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))).

ii.

EVIDENCE OF APPLICATION FILING.—As soon as practicable after receiving each application for blue card status, the Secretary shall provide the applicant with a document acknowledging the receipt of such application.

iii.

CONTINUING EMPLOYMENT.—An employer who knows an alien employee is an applicant for blue card status or will apply for such status once the application period commences is not in violation of section 274A(a)(2)of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(2)) if the employer continues to employ the alien pending the adjudication of the alien employee’s application.

iv.

EFFECT OF DEPARTURE.— Section 101(g)of the Immigration and Nationality Act (8 U.S.C. 1101(g)) shall not apply to an alien granted—

I.: advance parole under clause (i)(I) to reenter the United States; or
II.: blue card status.

7.

SECURITY AND LAW ENFORCEMENT CLEARANCES.—

A.

BIOMETRIC AND BIOGRAPHIC DATA.— The Secretary may not grant blue card status to an alien or an alien dependent spouse or child under this section unless such alien submits biometric and biographic data in accordance with procedures established by the Secretary.

B.

ALTERNATIVE PROCEDURES.—The Secretary shall provide an alternative procedure for applicants who cannot provide the standard biometric data required under subparagraph (A) because of a physical impairment.

C.

CLEARANCES.—

i.

DATA COLLECTION.—The Secretary shall collect, from each alien applying for status under this section, biometric, biographic, and other data that the Secretary determines to be appropriate—

I.: to conduct national security and law enforcement clearances; and
II.: to determine whether there are any national security or law enforcement factors that would render an alien ineligible for such status.

ii.

PREREQUISITE.—The required clearances described in clause (i)(I) shall be completed before the alien may be granted blue card status.

8.

DURATION OF STATUS.—After the date that is 8 years after the date regulations are published under this section, no alien may remain in blue card status.

9.

FEES AND PENALTIES.—

A.

STANDARD PROCESSING FEE.—

i.

IN GENERAL.—Aliens who are 16 years of age or older and are applying for blue card status under paragraph (2), or for an extension of such status, shall pay a processing fee to the Department in an amount determined by the Secretary.

ii.

RECOVERY OF COSTS.—The processing fee authorized under clause (i) shall be set at a level that is sufficient to recover the full costs of processing the application, including any costs incurred—

I.: to adjudicate the application;
II.: to take and process biometrics;
III.: to perform national security and criminal checks, including adjudication;
IV.: to prevent and investigate fraud; and
V.: to administer the collection of such fee.

iii.

AUTHORITY TO LIMIT FEES.— The Secretary, by regulation, may—

I.: limit the maximum processing fee payable under this subparagraph by a family, including spouses and unmarried children younger than 21 years of age; and
II.: exempt defined classes of individuals from the payment of the fee authorized under clause (i).

B.

DEPOSIT AND USE OF PROCESSING FEES.—Fees collected pursuant to subparagraph (A)(i)—

i.: shall be deposited into the Immigration Examinations Fee Account pursuant to section 286(m); and
ii.: shall remain available until expended pursuant to section 286(n).

C.

PENALTY.—

i.: PAYMENT.—In addition to the processing fee required under subparagraph (A), aliens who are 21 years of age or older and are applying for blue card status under paragraph (3) shall pay a $100 penalty to the Department.
ii.: DEPOSIT.—Penalties collected pursuant to clause (i) shall be deposited into the Comprehensive Immigration Reform Trust Fund established under section 6(a)(1).

10.

ADJUDICATION.—

A.

FAILURE TO SUBMIT SUFFICIENT EVIDENCE.—The Secretary shall deny an application submitted by an alien who fails to submit—

i.: requested initial evidence, including requested biometric data; or
ii.: any requested additional evidence by the date required by the Secretary.

B.

AMENDED APPLICATION.—An alien whose application for blue card status is denied under subparagraph (A) may file an amended application for such status to the Secretary if the amended application—

i.: is filed within the application period described in paragraph (3); and
ii.: contains all the required information and fees that were missing from the initial application.

11.

EVIDENCE OF BLUE CARD STATUS.—

A.

IN GENERAL.—The Secretary shall issue documentary evidence of blue card status to each alien whose application for such status has been approved.

B.

DOCUMENTATION FEATURES.—Documentary evidence provided under subparagraph (A)—

i.: shall be machine-readable and tamper-resistant, and shall contain a digitized photograph;
ii.: shall, during the alien’s authorized period of admission, and any extension of such authorized admission, serve as a valid travel and entry document for the purpose of applying for admission to the United States;
iii.: may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B)of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)(B)); and
iv.: shall include such other features and information as the Secretary may prescribe.

c.

TERMS AND CONDITIONS OF BLUE CARD STATUS.—

1.

CONDITIONS OF BLUE CARD STATUS.—

A.

EMPLOYMENT.—Notwithstanding any other provision of law, including section 241(a)(7)of the Immigration and Nationality Act (8 U.S.C. 1231(a)(7)), an alien with blue card status shall be authorized to be employed in the United States while in such status.

B.

TRAVEL OUTSIDE THE UNITED STATES.—An alien with blue card status may travel outside of the United States and may be admitted, if otherwise admissible, upon returning to the United States without having to obtain a visa if—

i.

the alien is in possession of—

I.: valid, unexpired documentary evidence of blue card status that complies with subsection (b)(11); or
II.: a travel document that has been approved by the Secretary and was issued to the alien after the alien’s original documentary evidence was lost, stolen, or destroyed;

ii.

the alien’s absence from the United States did not exceed 180 days, unless the alien’s failure to timely return was due to extenuating circumstances beyond the alien’s control; and

iii.

the alien establishes that the alien is not inadmissible under subparagraph (A)(i),(A)(iii),(B), or (C) of section 212(a)(3)of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)).

C.

ADMISSION.—An alien granted blue card status shall be considered to have been admitted in such status as of the date on which the alien’s application was filed.

D.

CLARIFICATION OF STATUS.—An alien granted blue card status—

i.: is lawfully admitted to the United States; and
ii.: may not be classified as a nonimmigrant or as an alien who has been lawfully admitted for permanent residence.

2.

REVOCATION.—

A.

IN GENERAL.—The Secretary may revoke blue card status at any time after providing appropriate notice to the alien, and after the exhaustion or waiver of all applicable administrative review procedures under section 245E(c)of the Immigration and Nationality Act, as added by section 2104(a)of this Act, if the alien—

i.

no longer meets the eligibility requirements for blue card status;

ii.

knowingly used documentation issued under this section for an unlawful or fraudulent purpose; or

iii.

was absent from the United States for—

I.: any single period longer than 180 days in violation of the requirement under paragraph (1)(B)(ii); or
II.: for more than 180 days in the aggregate during any calendar year, unless the alien’s failure to timely return was due to extenuating circumstances beyond the alien’s control.

B.

ADDITIONAL EVIDENCE.—

i.

IN GENERAL.—In determining whether to revoke an alien’s status under subparagraph (A), the Secretary may require the alien—

I.: to submit additional evidence; or
II.: to appear for an interview.

ii.

EFFECT OF NONCOMPLIANCE.— The status of an alien who fails to comply with any requirement imposed by the Secretary under clause (i) shall be revoked unless the alien demonstrates to the Secretary’s satisfaction that such failure was reasonably excusable.

C.

INVALIDATION OF DOCUMENTATION.— If an alien’s blue card status is revoked under subparagraph (A), any documentation issued by the Secretary to such alien under subsection (b)(11) shall automatically be rendered invalid for any purpose except for departure from the United States.

3.

INELIGIBILITY FOR PUBLIC BENEFITS.—An alien who has been granted blue card status is not eligible for any Federal means-tested public benefit (as such term is defined [Schumer1]and implemented in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613).

4.

TREATMENT OF BLUE CARD STATUS.—A noncitizen granted blue card status shall be considered lawfully present in the United States for all purposes while such noncitizen remains in such status, except that the noncitizen—

A.: is not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986 for his or her coverage;
B.: shall be subject to the rules applicable to individuals who are not lawfully present set forth in subsection (e) of such section; and
C.: shall be subject to the rules applicable to individuals who are not lawfully present set forth in section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C. 18071(e)); and
D.: shall be subject to the rules applicable to individuals not lawfully present set forth in section 5000A(d)(3) of the Internal Revenue Code of 1986.

5.

ADJUSTMENT TO REGISTERED PROVISIONAL IMMIGRANT STATUS.—The Secretary may adjust the status of an alien who has been granted blue card status to the status of a registered provisional immigrant under section 245Bof the Immigration and Nationality Act if the Secretary determines that the alien is unable to fulfill the agricultural service requirement set forth in section 245F(a)(1) of such Act.

d.

RECORD OF EMPLOYMENT.—

1.

IN GENERAL.—Each employer of an alien granted blue card status shall annually provide—

A.: a written record of employment to the alien; and
B.: a copy of such record to the Secretary of Agriculture.

2.

CIVIL PENALTIES.—

A.: IN GENERAL.—If the Secretary finds, after notice and an opportunity for a hearing, that an employer of an alien granted blue card status has knowingly failed to provide the record of employment required under paragraph (1) or has provided a false statement of material fact in such a record, the employer shall be subject to a civil penalty in an amount not to exceed $500 per violation.
B.: LIMITATION.—The penalty under subparagraph (A) for failure to provide employment records shall not apply unless the alien has provided the employer with evidence of employment authorization provided under subsection (c).
C.: DEPOSIT OF CIVIL PENALTIES.—Civil penalties collected under this paragraph shall be deposited in the Comprehensive Immigration Reform Trust Fund established under section 6(a)(1).

3.

TERMINATION OF OBLIGATION.—The obligation under paragraph (1) shall terminate on the date that is 8 years after the date of the enactment of this Act.

4.

EMPLOYER PROTECTIONS.—

A.: USE OF EMPLOYMENT RECORDS.—Copies of employment records or other evidence of employment provided by an alien or by an alien’s employer in support of an alien’s application for blue card status may not be used in a civil or criminal prosecution or investigation of that employer under section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) or the Internal Revenue Code of 1986 for the prior unlawful employment of that alien regardless of the adjudication of such application or reconsideration by the Secretary of such alien’s prima facie eligibility determination. Employers that provide unauthorized aliens with copies of employment records or other evidence of employment pursuant to an application for blue card status shall not be subject to civil and criminal liability pursuant to such section 274A for employing such unauthorized aliens.
B.: LIMIT ON APPLICABILITY.—The protections for employers and aliens under subparagraph (A) shall not apply if the aliens or employers submit employment records that are deemed to be fraudulent.

e.

RULEMAKING.—Not later than 1 year after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of Agriculture, shall issue final regulations to implement this chapter.

§ 2211 : REQUIREMENTS FOR BLUE CARD STATUS