By Attorneys Ben Loveman & Robert L. Reeves
Current immigration laws are not perfect but creative and strategic use of the provisions of the laws as they exist can offer pathways to residency or long-term employment authorization. The last two years have been difficult for immigration reform efforts. After flirting with a comprehensive overhaul of the immigration system, the House of Representatives failed to even vote on the reform package. The law, which could have brought hope to millions, languished and died in the halls of Congress shepherded to a slow end by Conservative representatives unwilling to even debate the law. President Obama’s efforts to offer temporary relief through work authorization through the DAPA program have been, at least temporarily, scuttled due to lawsuits from groups opposed to reform.
The inability of Congress or the President to pass meaningful reform has not changed the fact that scores of families have at least one member who is here without permission. These loved ones living in the shadows want nothing more than to be able to contribute and support their families here and abroad. While we are still fighting and hoping for a major overhaul to the system, for many simply waiting is not the best option. Laws in existence now offer the chance for employment authorization and a pathway forward towards residency and a better future.
Present law provides for persons who have U.S. citizen or lawful permanent resident spouses, children, or parents who have resided in the United States for ten-years or longer to apply for permanent resident status before an immigration Judge. To be eligible the applicant must prove that s/he has: (1) resided in the United States continuously for ten years; (2) has been a person of good moral character; (3) has not been convicted of certain criminal offenses; and (4) has a U.S. citizen or lawful permanent resident spouse, parent, or child who would suffer exceptional and extremely unusual hardship. The applicant must meets each of these requirements and be deserving of approval as a matter of discretion.
Applying for resident status before a Judge necessarily means being in removal proceedings which can be a scary prospect. But the convergence of huge court backlogs and the government’s use of prosecutorial discretion mean that going to immigration court is not as scary as it used to be. With wait times to see a judge hitting record highs it can be over five years before a case is decided and in the meantime applicants will be entitled to work authorization and be able to support their families. Further, for long-time residents with familial ties to the U.S. and a clean criminal history the government might agree to indefinitely close a removal case meaning the applicant will remain indefinitely eligible for employment authorization.
Whether to pursue a cancellation of removal case as a means to obtain employment authorization and a chance at residency depends on the particular circumstances of each case. Assessing the benefits and risks requires inventorying personal, familial, and immigration history. In some cases the inventory could reveal that seeking cancellation is largely risk-free. For instance, an undocumented father with U.S. citizen children in high school, no criminal record, and the need for better employment to support his children would be a likely candidate to pursue cancellation of removal. Given the current backlogs, even if the government does not agree to suspend processing of his case, by the time he goes for final hearing before an immigration judge one of his children will likely be eligible to petition him for permanent resident status. In the meantime he will have gained the invaluable opportunity to work anywhere his talents allow.
Applying for cancellation of removal may also be attractive to persons with lawful permanent resident or U.S. citizen parents who have filed petitions on their behalf and who are waiting for a visa to be available to either apply for adjustment of status or to apply for an immigrant visa in conjunction with the provisional waiver. For more on the expanded provisional waiver process—another opportunity under current law—please see our recent article on the topic on our website). For these of persons applying for cancellation offers the chance to obtain employment authorization until their visa is available.
Other cases will present closer calls and some cases will be unsuited to this strategy. The point is that the immigration system in place today can be utilized if the right questions are asked and a careful analysis is conducted. If you or a loved one might be eligible for employment authorization and residency through cancellation of removal you should discuss your case with an experienced immigration attorney.