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Executive Action – Family Immigration and Other Fixes Needed

This blog posts follows up to an earlier post, Executive Action – Business Immigration Fixes Needed, discussing the American Immigration Lawyers Association (AILA) letter to President Obama of August 6, 2014 requesting Executive Action. AILA recommended additional fixes to family immigration, prosecutorial discretion and enforcement related issues that could be achieved administratively in the face of Congressional inaction on statutory changes.

AILA states that “the guiding principle for administrative actions should be to advance our national interest, which includes: supporting family unity, promoting economic growth, and improving processes.”

Expand Deferred Action.

AILA advocates expanding the 2012 Deferred Action for Childhood Arrivals (DACA) program to a wider group including:

  • Parents of U.S. citizens;
  • Parents of DACA-eligible individuals; and
  • Individuals who have resided in the U.S. for three years or more.

Further, DACA should include work authorization, as in the present DACA program, but USCIS should tweak the requirement for advance parole (a travel document) to be based on a wider range of travel needs beyond just “emergent circumstances.”

As a reminder, deferred action is NOT “amnesty; it is NOT a visa; it is NOT a green card or citizenship. It is a temporary fix given in two-year increments prohibiting deportation of individuals who are out of status until Congress gets around to more fundamental statutory changes for this population.

Do Not Count Derivatives Toward the Overall Visa Quotas.

This was mentioned in the business immigration context in the prior post, Executive Action – Business Immigration Fixes Needed. By not counting derivative spouses and children (single and under 21), more visas would be freed up for principals stuck in family based quotas (every category/every country) that could result in shorter backlogs.

Expand the Use of Parole-in-Place (PIP).

Section 212(d)(5) of the INA provides the Secretary of Homeland Security with the authority to parole into the U.S. temporarily, under such conditions as he or she may prescribe, on a case-by-case basis, for urgent humanitarian reasons, or significant public benefit, any alien applying for admission to the United States. Parole is like a legal fiction – the body is here, the status is not of nonimmigrant, permanent resident or US citizen, but the person is here with a defined permission under the circumstances above. Parole is very important as it is one of the grounds besides a formal admission in which someone can complete their green card process in the USA called “adjustment of status.” Right now, most people who entered illegally cannot file for adjustment and must instead consular process their green card application, whether business or family based. Leaving U.S. to go to the consulate then triggers the 3 or 10-year bar to readmission, thus requiring a waiver of inadmissibility and further delaying the case. A grant of parole in place would allow a person to avoid consular processing and the waiver in most cases. And it would be useful for those who do not have qualifying members for the waiver nor proof of extreme hardship. (See below.)

Currently, USCIS only uses PIP for family members of active duty and veteran military personnel. But, AILA advocates that its use be expanded to other non-military related individuals with US citizen or permanent resident parents, children or spouses.

Permit Individuals Who Are Eligible for Adjustment of Status to “Pre-Register”

In the previous post on Executive Action – Business Immigration Fixes Needed it was mentioned that USCIS could procedurally establish a pre-registration system for adjustment of status while individuals wait out the quota if they have valid underlying nonimmigrant status and an approved I140 or I130 visa petition. Adjustment of status cannot be filed until the quota is current. A pre-registration system would also help USCIS collect data on the numbers of likely applicants for quota purposes, since the monthly quota reports in the Visa Bulletin are really just estimates of visa issuance. Applicants who pre-register could get interim work authorization and travel documents while waiting for the quota to become current.

Implement a More Expansive Interpretation of “Extreme Hardship” for Waiver Purposes,

In this Seattle Immigration Attorney’s opinion, this is one of the most important fixes needed short of Congress eliminating the statutory 3 and 10-year bars to inadmissibility for prior unlawful presence. AILA proposes a Presumption of Extreme Hardship for certain groups of individuals. Currently, by statute, a waiver of inadmissibility for unlawful presence (and for some other grounds of inadmissibility) is available upon proof of “extreme hardship” to certain qualifying relatives. USCIS should develop and implement a more generous interpretation as to what constitutes “extreme hardship.”

Right now, the factors to consider include family ties in the U.S. and in the country of removal, medical and mental health conditions, financial hardships, educational opportunities and losses, and the political, economic, and social conditions in the country of removal. While USCIS decides each waiver application “case by case,” the “extreme hardship” factors are construed narrowly, especially at the initial adjudication level. Many cases are overturned at the administrative appeals level. USCIS should issue guidance to the field or utilize the AAO precedent decision process to set forth a more generous evidentiary standard for establishing extreme hardship. In terms of the provisional waiver process, this would not only further promote USCIS’s stated goal of promoting family unity, it would also avoid the unnecessary expense and delays in requiring individuals to repeat the entire waiver process while waiting outside the United States.

USCIS should also create a presumption of extreme hardship for individuals with certain equities such as having a qualifying relative that is a U.S. citizen or permanent resident spouse, the couple has been married for a minimum period of time (i.e., 3 years), or they have at least one U.S. citizen child.

Finalize and Release Policy on Travel and Reentry for Advance Parolees Based on Matter of Arrabally and Yerrabelly.

AILA advocates that USCIS should finalize its policy on the effect of travel and reentry pursuant to a grant of advance parole on inadmissibility under the three- and ten-year unlawful presence bars and eligibility for adjustment of status. In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the BIA held that an alien who leaves temporarily on advance parole for purposes of returning to the U.S. to pursue a pending application for adjustment of status does not affect a “departure” for purposes of the ten-year bar. Although that case was in the context of Temporary Protected Status, a generous Arrabally policy will provide measurable benefits to many individuals who have been present in the U.S. for lengthy periods of time, have built strong family and community ties, and are eligible for lawful permanent residence. USCIS should interpret Arrabally to apply to any individual who travels pursuant to a grant of advance parole, regardless of the underlying basis for issuing the parole document. This would be especially useful for DACA and other individuals in other statuses who, because of a prior entry without inspection, would then be able to adjust status in the US if paroled back into the USA. Until now, application of Arrabally and Yerrabelly have been inconsistent around the country. Although not mentioned in the AILA letter to President Obama, an added benefit would be that there would be less pressure on US consulates, especially in Ciudad Juarez, Mexico, and the waiver division if more cases could be adjudicated in the US.

In sum, there are a number of interpretive and procedural changes that could be done at the administrative level that do not require a statutory fix by Congress, that could benefit many individuals trying to complete their immigration status.