By Attorneys Robert L. Reeves and Jeff L. Khurgel
Recently, an internal U.S. Citizenship and Immigration Services (USCIS) Memorandum became public. The undated Memorandum outlines the proposals and recommendations made by USCIS senior staff members to Director Alejandro N. Mayorkas regarding possible solutions USCIS can implement to assist people with immigration problems. The Memorandum outlines options that promote family unity, foster economic growth and reduce the threat of removal for certain individuals present in the U.S. without authorization.
For now, the recommendations addressed in the Memorandum are merely prospective in nature. It is not clear when or even if any of the ideas will become USCIS policy. However, the creative and pragmatic recommendations indicate an acknowledgement that our nation’s immigration system is broken, and, due to legislative inaction, administrative solutions may be necessary.
Among the recommendations outlined in the Memorandum are the following:
Recommendations for Uniting Families
Lessening the Hardship Standard for Waivers – Individuals who have unlawfully remained in the U.S. for over 180 days are barred from re-entry for 3 years (or 10 years if unlawful presence was over one year). As it stands now, in order to be approved for a Waiver of this multiple-year ban, a very high standard – extreme hardship to a qualifying relative – must be shown. As a result, many such Waivers are denied. A denial of such a Waiver means an immigrant may be forced to wait 3 or 10 years to be reunited with family, despite the hardship on the family. The Memorandum proposes lessening the standard for hardship, to “increase the number of individuals applying for waivers, and improve their chances for receiving them.”
Advance Parole Travel Without Bars – The 3 and 10-year unlawful presence bars described above are often a surprise to individuals who have been given advance permission to travel because their Adjustment of status is pending. The Memorandum discusses re-examining whether such bars would apply when an individual travels abroad with USCIS permission and then seeks to re-enter the U.S. to await his or her pending Adjustment of Status.
Adjustment of Status for Applicants who Entered Illegally but are in Temporary Protected Status – The Memorandum acknowledges the thousands that would benefit from being allowed to adjust status, despite having entered the U.S. without authorization, and are currently in legal U.S. Temporary Protected Status due to conditions in his/her home country. Under current law, such individuals cannot adjust status, and are essentially stuck, despite being otherwise eligible to adjust status.
Parole-in-Place to Allow Adjustment of Status Applicants to Apply for a Green Card Without the Need to Depart U.S. – Many individuals in the U.S., who otherwise qualify for a Green Card, are prohibited from applying because they entered the country without authorization. The Memorandum refers to the USCIS discretionary authority to “proclaim” an individual in the country legally – also known as Parole-in-Place. Such individuals would be allowed to apply for a Green Card even without a lawful entry to the U.S.
Beneficiaries of such a provision, as envisioned in the Memorandum, are applicants who entered the U.S. as minors without inspection, and whose return to their home country for consular processing would impose an extreme hardship on qualified family members. Reference is also made to elderly individuals who have lived for many years in the U.S., and for whom leaving the U.S. to process a visa at a U.S. Embassy would impose a financial burden.
Protecting Individuals From Fear of Deportation
Deferred Action as a Temporary Fix – Deferred Action is a way by which USCIS can allow someone to stay in the U.S., (i.e. agree not to deport the individual), but which does not provide any legal immigration status. People in Deferred Action Status are permitted to apply for work authorization and are usually not accruing unlawful presence towards the 3 and 10-year bars.
Deferred Action is a temporary solution, within the prosecutorial discretion of USCIS, and is a way of placing a “band-aid” on the problem many unauthorized immigrants face. Innocent, hard-working immigrants would not need to wake up in the morning, and go to work with the fear that they may not come home to their family at the end of the day.
The Memorandum acknowledges the political implications that a widespread grant of Deferred Action would engender, and also, smartly, proposes a more narrowly tailored grant of Deferred Action for certain groups of people. Proposed groups of individuals who could qualify are those in the country since a certain fixed date, and those that qualify under the provisions of the DREAM Act – students who graduate from US high schools, are of good moral character, arrived in the U.S. as minors, and meet residency requirements.
Issue NTAs Strategically – A Notice to Appear (NTA) is a document which USCIS sends to the Immigration Court and the alien, causing a person’s Deportation Proceedings to commence. USCIS issues NTAs for some cases where it knows a person is in the country illegally, but in other cases, it does not issue NTAs. Sometimes, it appears there is no rhyme or reason for the issuance of NTAs. As a result, immigration courts are overtaxed, and immigrants must face an Immigration Judge when they should not need to. The Memorandum envisions a more strategic, humane, approach on the part of USCIS. Namely, the Memorandum discusses USCIS not issuing NTAs for individuals who would probably lose their case in court, if those individuals do not have any significant immigration or criminal history.
Recommendations for Fostering Economic Growth
Allow H-1B Dependents to Earn a Living – The Memorandum envisions, under certain circumstances, allowing the spouses and minor children of H-1B status holders (H-4 dependents) to work legally in the U.S. While it is not clear when or even if any of the ideas in the Memorandum will become USCIS policy, permissible work status for H-4 status holders appears to have strong support. According to the Memorandum: “USCIS Senior Leaders have already approved this course of action.”
Allow Students and Others to Maintain Nonimmigrant Status While Pursuing Adjustment of Status – Individuals in F, P, O, TN, E and other nonimmigrant categories generally have their status complicated by applying for a Green Card. Once such individuals start the Green Card process, changing or extending one’s status becomes problematic. Under Section 214(b) of the Immigration and Nationality Act, immigration authorities may deny such extensions or changes of status if the Green Card is in process. The Memorandum’s proposes expanding the concept of the dual-intent doctrine, would ease the burden on certain nonimmigrants undergoing the adjustment of status process or undergoing temporary travel abroad.
Extension of Time to Depart for Certain Workers and Their Dependents – An extension of the “grace period” for certain nonimmigrants is also proposed. Currently, many individuals in a work-permitting status in the U.S. are only allotted 10 days after conclusion of work status to depart the U.S. before classification as illegal. The clear-eyed Memorandum recognizes that “the current 10-day grace period is insufficient and should be expanded by regulation to permit between 30-90 days for departure…”
Flexibility of Work Authorization Documents – The Memorandum proposes allowing individuals who have been issued Employment Authorization Documents (EADs) to continue working for up to 240 days after expiration, while a renewal EAD is pending. There is also discussion of expanding circumstances under which a 2-year EAD is issued instead of the current, common, 1-year EAD.
Expand Visibility and Effectiveness of EB-5 Investment Program – Referring to the current EB-5 scheme as “underutilized,” collaboration with the Department of Commerce is proposed. The EB-5 program allows certain immigrants who have made investments in U.S. business and created 10 jobs to apply for a Green Card (or, Immigrant Visa if abroad). However, the job creation goals of the EB-5 program have not been fully realized as the program remains largely underutilized. A better use for program is envisioned, making the program more accessible to foreign investors through administrative efficiency and promotion.
While it is not clear if or even when any of the above-referenced recommendations will become USCIS policy, it is encouraging to note that Director Mayorkas’ staff is “thinking outside of the box.” As the nation’s lawmakers remained embroiled in partisan politics, millions continue to suffer at the hands of a broken immigration system. USCIS has the authority to provide administrative relief options for immigrants, and should not hesitate in doing so if Congress fails to act soon.