Michael Phulwani Articles

ADMINISTRATIVE ALTERNATIVES TO COMPREHENSIVE IMMIGRATION REFORM

ADMINISTRATIVE ALTERNATIVES TO COMPREHENSIVE IMMIGRATION REFORM

By

Michael Phulwani, Esq.

Obama administration has been trying on end to run around the Congress to get the Comprehensive Immigration Reform passed but the Congress has thus far failed to act.

The Administration officials in an internal memorandum have outlined measures that could provide reliefs to promote family unity, reduce the threat of removal of certain individuals present in the U.S. without authorization, grant deferred action, treating individuals who entered the U.S. without visa as ‘parolees’ to enable them to adjust status in the U.S, making it easier to obtain waiver of inadmissibility, several other reliefs presently not available or difficult to obtain. It is an undated internal memorandum which was not supposed to be made public but was released few days ago by Senator Charles E. Grossley, Republican of IOWA. The draft memorandum, which has been leaked without permission of USCIS, examines the legal framework of Immigration and explores possible solutions. We commend the reflection of the pursuit of law and willingness of USCIS leadership to take up this through examination.

While these are only the proposed recommendations of the Administration, AILA (American Immigration Lawyers Association) proposes that many of these proposals should be carried out. Long needed regulations to help children and crime victims should be published. Immigration policies that encourage investment in America and creation of jobs should be emphasized and expanded.

The following is the summary of the contents of the memorandum.

Purpose: This memorandum offers administrative relief options to promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization. It includes recommendations regarding implementation timeframes and required resources.

Options: The following options – used alone or in combination – have the potential to result in meaningful immigration reform absent legislative action. Each requires the development of specific written guidance and/or regulatory language, implementation protocols, outreach and training within USCIS and coordination among DHS immigration components.

A.     To Promote Family Unity

1.      Allow TPS (Temporary Protected Status) Applicants who Entered without Inspection to Adjust or Change Status

Individuals in TPS continued to be deemed ineligible to adjust or change status in the U.S. based on legal opinions rendered in the early 1990s by a General Counsel of the former Immigration and Naturalization Service (INS). Given the current definition of ‘admission’ in the INA, the USCIS Chief Counsel has expressed her view that these legal opinions no longer reflect a correct interpretation of the statute.

Thus, USCIS should no longer adhere to the 1990 General Counsel opinions, and instead permit individuals in TPS to adjust status or change status. Opening this pathway will help thousands of applicants obtain lawful permanent residence without having to leave the U.S. The SPC is poised to review this issue in May. Depending on its final decision, implementation of this option could begin immediately following the development of written field guidance and an external communication plan. Allowing TPS applicants to adjust or change status will increase USCIS revenue in the form of receipts.

B.    To Promote Family Unity

2.    Expand the Use of Parole-in-Place

USCIS has the discretionary authority under the INA to parole in the U.S. on a case-by-case basis for ‘urgent humanitarian reasons’ or ‘significant public benefit’ any applicant for admission. The Act provides that an alien present in the U.S. who has not been admitted shall be deemed an applicant for admission. Granting parole to aliens in the U.S. who have not been admitted or paroles is commonly referred to as “parole-in-place” (PIP).

By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger a bar to returning. For years, USCIS has used PIP on a very limited basis. Last month, however, the SPC approved the broader use of PIP for qualified military dependents.

            Other individuals/groups amendable tot PIP include applicants for admission who entered the U.S. as minors or without inspection, and whose return to their home country for consular processing would impose an extreme hardship to qualified family members. By statute, such family members, include a U.S. citizen or lawful permanent resident parent, spouse, son or daughter. For example, where the applicant is the spouse of a U.S. citizen and also the primary caretaker of a disable child or children, PIP could be used to enable adjustment in the U.S. Other applicants, including those who are elderly or who have lived for many years in the U.S., and for whom consular processing would impose a formidable financial burden, could likewise be granted PIP.

Comments: This is very good news. Presently, a person who entered without inspection such as Border crossing without visa, cannot adjust status as a permanent resident in the U.S. even if he is married to a U.S. citizen. If he leaves the country to apply for an immigrant visa at the Consulate, he will be denied the immigrant visa and subject to 3/10 years bar. A person who is paroled in the U.S. is considered having legally entered the U.S. and therefore he or she can adjust status in the U.S. based upon an immigrant visa petition filed by U.S. citizen spouse or parent. USCIS proposed policy to treat EWI as parolee would permit thousands of people to apply for adjustment of status. If the proposal is implemented and not challenged in the court, such persons may not wait for the passage of Comprehensive Immigration Reform.

3.    Amend the Unlawful Presence Policy for Adjustment Applicants

Under the current USCIS interpretation, an adjustment applicant who departs the United States and returns on advance parole authorization triggers the 3-year or 10-uear bar unlawful presence ground of inadmissibility. Because USCIS generally issues advance parole for adjustment applicants liberally and the fee for the advance parole document is now included with the fee for adjustment, the public perceives that: 1) USCIS authorizes the departure of such alien and 2) USCIS deceives individuals into triggering their own inadmissibility.

            To address these issues, OP&S is currently examining the feasibility of policy options so that individuals would not be deemed to have triggered the bar upon departure with prior authorization from DHS.

4.    Lessen the Standard for Demonstrating “Extreme Hardship”

The INA renders inadmissible for 3 or 10 years individuals who have been unlawful present in the U.S. for 180 days or one year respectively, and then depart. By statute, DHS has discretion to waive these grounds of inadmissibility for spouses, sons and daughters of U.S. citizens or lawful permanent residents if the refusal to admit such individuals would result in extreme hardship to their qualifying relatives. Generally, the “extreme hardship” standard has been narrowly construed by USCIS.

To increase the number of individuals applying for waivers, and improve their chances for receiving them, CIS could issue guidance or a regulation specifying a lower evidentiary standard for “extreme hardship”. This would promote family unity, and avoid the significant human and financial costs associated with waiver denial decision born of an overly rigid standard. This revised standard would also complement expanded use of PIP as set forth in B.

Comments: Presently, applications for wavier of grounds of excludability such as fraud or misrepresentations are approved in limited number of cases where extreme hardship to the U.S. citizen or green card holder spouse or parent is proved. This proposal, if implemented, will make it easy to obtain the waiver. It will help thousands of persons who are unable to prove extreme hardship. 

5.    Publish final regulations related to relief for unaccompanied minors, and for victims of human trafficking, domestic violence, and other criminal activities.

These rules would help regularize the immigration status of minors in foster care or in the process of being adopted. They would further clarify the derivative family members for whom a victim of human trafficking can petition, implement provisions allowing such individuals to enter the U.S. based on the danger of retaliation, and establish procedures for victims of elder abuse to seek relief.

Comments: This is a humanitarian approach to help individuals who deserve sympathy based upon specific situations mentioned above.

C.   To Foster Economic Growth

1.    Partner with Department of Commerce (DOC) to administer the EB-5 Immigrant Investor Program

The EB-5 program allows certain aliens who have made investments in US businesses and who created at least ten jobs to obtain LPR status. Due to a number of factors, the EB-5 program has been under utilized and, as a result, job creation under this program has been limited. USCIS views the EB-5 program as an important tool in assisting the U.S. economy as our country continues to recover from the recent recession. Currently, an opportunity exists for USCIS and the DOC to work together in promoting the EB-5 Immigrant Investor Pilot Program (Pilot Program). The goals of the Pilot Program and the goals of certain DOC components, such as Invest in America, seem to provide a natural starting point for agency collaboration. OPS proposes setting up a working group with the DOC to determine how DOC might assist USCIS in making the EB-5 program more accessible to foreign investors through administrative efficiencies and promotion.

Comments: The present requirement of one million dollars investment or $500,000 in high unemployment area in a new business with additional requirement to hire at least 10 U.S. workers is difficult to comply with by many individuals, who wish to invest in the U.S. Making changes such as investment amount being $25,000 will attract more investors and create more jobs.

2.    Expand the Dual Intent Doctrine

Most non-immigrants who apply for adjustment of status are presumed to be intending immigrants and are no longer eligible to maintain nonimmigrant status. The INA permits H-1 temporary workers in specialty occupation, L-1 intra-company managerial or executive transferees, and their spouses and children to maintain their nonimmigrant status while their adjustment applications are pending.

USCIS should consider expanding the dual intent concept to cover other long-term nonimmigrants, including F, O, TN, P and E visa holder. These long-term non-immigrants often need to make short overseas travels during their authorized stay. Under the “dual intent” doctrine, these non-immigrants would be able to maintain valid nonimmigrant status and travel overseas without advance parole while their adjustment applications are pending. They would also be allowed to maintain their nonimmigrant status if USCSI denies their adjustment applications.

Comments: Frequently, students are denied visas under section 214(b) only for the reason that they cannot prove to the consular officer that they have no intention to remain in the U.S. after completing studies. Extending dual intent provision to students and certain other categories of nonimmigrants mentioned above would ensure that applicants who are otherwise qualified will not be denied in the discretion of the consular officers.

3.    Extend employment authorization for H-4 dependent spouse of H-1B principals where the principals are also applicants for lawful permanent residence under AC21.

USCIS senior leaders have already approved this course of action; it is therefore recommended in the context of identifying administrative relief options that their decisions be communicated to the DHS and to the White House.

Comments: Very good news for H-4 spouses of H-1B aliens. Instead of sitting at home. They would be able to work.

4.    Expand existing “grace periods” to depart the U.S. for E-1, E-2, E-3, H-1B, H-1B1, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q, R, and TN workers and their dependents.

Non-immigrant workers whose period of employment authorization has expired should be afforded a reasonable period of time to conclude their affairs and leave the U.S. The current 10-day “grace period” for departure is insufficient and should be expanded by regulation to permit between 30-90 days for departure depending on employment category and length time the individuals has been authorized to work in the U.S.

D.   To Achieve Process Improvements

1.    Expand the Availability of Premium Processing Service

Expand availability of premium processing service to additional employment-based classification, to include applications to change or extend nonimmigrant status, applications for employment authorization and advance parole, and all employment-based immigrant petitions.

2.    Implementation of the Validation Instrument for Business Enterprises (VIBE) Program.

VIBE is a web-based tool for adjudicators that will enable USCIS to independently validate the viability and current level of business operations of companies and organizations filing employment-based immigrant and nonimmigrant petitions.

            By providing information about a petitioning company/organization’s level of business operations, VIBE will enhance USCIS’ ability to more easily distinguish eligible petitioners from those that are ineligible and/or fraudulent.

            VIBE is expected to eventually lessen the need for petitioners to repeatedly submit voluminous paper documentation to establish the petitioner viability. This, in turn, will likely reduce the number of RFEs issued to otherwise eligible petitioners.

            Additionally, by providing the same petitioner information to all four Service Centers, VIBE will promote consistency in the adjudication of employment-based immigrant and nonimmigrant petitions. Overall, the additional information provided by VIBE will improve the integrity of employment-based immigrant and nonimmigrant programs which will ultimately provide eligible petitioners greater access to legal foreign workers.

E.    To Achieve Process Improvements

3.    H-2B Cap Allocation Options

An options paper has been prepared by USCIS which discusses alternative ways to distribute the limited number of H-2B cap numbers available per fiscal year. Options include a quarterly distribution, a monthly distribution, or a “peak-period” distribution. Options are currently under review within USCSI and DHS.

4.    Automatic Extension of Employment Authorization Documents (EADs)

Permit an automatic extension of EADs for up to 240 days when an application to extend the EAD has been filed prior to its expiration. USCIS currently permits this for nonimmigrant visa petitions.

5.    2-year EADs – Issue Employment Authorization Cards valid for 2 years in wider circumstances.

Comments: This policy has already been implemented for I-485 applicants of employment-based petitions.

6.    Reengineering of Civil Surgeon Process

USCIS proposes to implement a new process to govern the designation and revocation of civil surgeons, who are physicians authorized to conduct legally required medical examinations of aliens applying for certain immigration benefits. The new process would enhance the caliber of civil surgeons, improve the quality of immigrant medical examinations, and strengthen DHS’ commitment to safeguarding public health.

7.    Internal Policy Review & Enhancement

USCIS has prioritized a comprehensive review of all policy documents to ensure that guidance is consistent throughout the agency. The review will examine all existing policy within the Agency and provide access to the most up-to-date guidance to both internal and external stakeholders.

F.    To Protect Certain Individuals or Groups from Threat of Removal

1.    Increase the Use of Deferred Action

For individuals already admitted to the U.S. (and therefore ineligible for PIP), USCIS can increase the use of deferred action. Deferred action is an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time. A grant of deferred action does not confer any immigration status, nor does it convey or imply any waivers of inadmissibility that may exist. Likewise, deferred action cannot be used to establish eligible for any immigration benefit that requires maintenance of lawful status. Periods of time in deferred action do, however, qualify as periods of stay authorized by the Secreatery of DHS, and may extend indefinitely. Individuals, who have been granted deferred action may apply for employment authorization. Within DHS, USCIS, Immigration and Customs Enforcement, and Customs and Border Protection, all possess authority to grant deferred action.

            USCIS has previously allowed the use of deferred action to provide relief to non-immigrants whose periods of admission had expired, or otherwise had failed to maintain lawful immigrant status.

            While it is theoretically possible to grant deferred action to an unrestricted number of unlawfully present individuals, doing so would likely be controversial, not to mention expensive. Presently, no specific application form or fee is required to request or receive deferred action. Were USCIS to increase significantly the use of deferred action, the agency would either require a separate appropriation or independent funding stream. Alternatively, USCIS could design and seek expedited approval of a dedicated deferred action form and require a filing fee. 

Rather than making deferred action widely available to hundreds of thousands and as a non-legislative version of “amnesty”, USCIS could tailor the use of this discretionary option for particular groups such as individuals who would be eligible for relief under the DREAM Act (an estimated 50,000) or under the Registry, who have resided in the U.S. since 1996 (or as of a different date designed to move forward the Registry provision now limited to entries before January 1, 1972).

2.    Issue NTAs Strategically to Promote DHS Priorities

Under Policy Memorandum, USCIS issues NTAs for denied cases where such issuance is prescribed by regulation. This includes but is no limited to, denials of the Form I-751 Petition to Remove Conditions on Residence; Form I-829, Petition by Entrepreneur to Removal Conditions; and Form I-817, Application for Family Unity Benefits. USCIS also issued NTA after termination of an alien’s refugee status by the District Director.

Aside from these situations, USCIS has discretion regarding whether or not to issue NTAs. In practice, and in accordance with the spirit of Policy Memorandum, the agency typically issues NTAs for any/all denial decisions without weighting the likely impact on the applicant or the Executive Office for Immigration Review.

To promote the expressed priorities of ICE’s Secure Communities Initiative regarding increased docket efficiency and a focus on individuals who pose a danger to the community; USCIS should issue NTAs strategically, rather than across the board. If the relied is potentially available in removal, USCIS should consider issuing an NTA. On the other hand, where no relief exits in removal for an applicant without any significant negative immigration or criminal history, USCIS should avoid using its limited resources to issue an NTA. Denied cases should, however, be referred to ICE given the agency’s enforcement responsibilities.

Certain Republican Senators and others who oppose some of the recommendations contained in the memorandum have said that they are concerned that Immigration officials would use their discretionary powers to grant blanket legal status to millions of illegal immigrants. Also the potential plans for a large scale effort to offer parole or to defer action on undocumented aliens in the U.S. would be used to bypass Congress and the legislative process. However, it is believed, that it is theoretically possible to grant deferred action to an unrestricted number of unlawfully present individuals but that option would be politically ‘controversial’ and too expensive. Christopher Bentley, the Spokesman of the Immigration agency has said that ‘To be clear, DHS will not grant deferred action or humanitarian parole to the Nation’s entire illegal immigrant population.’

We have in the past seen many attempts to scour the law to find justification for draconian and ultimately unhelpful ways to make immigrants life miserable. The draft document tries to think through the ways to make the legal immigration system work in support of sensible law enforcement. It respects the law and respects the people, who must deal with the law. The Obama administration must be congratulated for this. Administration officials at least are trying to find ways to help fill this vacuum.