On November 27, 2012, Senators Kyl
(R-AZ), Hutchison (R-TX), and McCain (R-AZ) introduced the ACHIEVE Act, which introduces the “W” visa for those who entered the United States before the age of 14, are under age 29 when the law is passed, had been physically present for 5 years, is a person of good moral character and with no felonies or misdemeanors other than minor (30-days or less as a sentence) crimes. 
This is the DREAM Act, but with a few key differences: (1) it does not provide permanent residence, and (2) it restricts eligibility to a narrower class of individuals.

This isn’t the first we’ve seen of the “W” visa. Back in 2003 when “Immigration reform” wasn’t a dirty word to Republicans, Senator Cornyn proposed a guest worker program that would include a “W” visa and would have forgiven past unlawful immigration activity – essentially “amnesty.”  It’s funny how much difference a decade makes, as the new vision for the “W” visa looks like it was crafted to rid any impression of “amnesty.”  It forgives nothing, only applies to a small sliver of individuals, and gives them nothing permanent. 

There are implications for individuals who have appealed their Immigration cases to the Board of Immigration Appeals (which is why we’re writing about it).  To be eligible, the person cannot have been ordered removed and must have earned a high school diploma or GED and enlist in the military or attend college.  But as evidence of your 5 years of physical presence, the Act suggests you submit at least two documents from a long list, which includes 

“An order of removal, exclusion, or deportation issued by an Immigration Judge or the Board of Immigration Appeals.”

So, how can a person use their order of removal (or a decision from the BIA denying their appeal) to prove 5 years of presence if the order of removal makes them ineligible?  The Act contains a very small eligibility exception for those who were ordered removed (1) before they turned 16, and (2) who “remained in the United States under the color of law after the order was issued.”  This will have to be further developed, because there aren’t many ways to “remain in the United States” under color of law once you’ve been ordered removed.  Maybe under a stay of removal entered by the Circuit Court of Appeals?  What about an Order of Supervision after ICE has unsuccessfully tried removal?  It’s not clear.  But if your BIA Appeal was denied before you were 16, you should save the written decision in case the ACHIEVE Act ever becomes law.

The full text of the Senate Bill is below.