Administrative alternatives to comprehensive immigration reform – Part II

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By Michael Phulwani

Obama administration has been trying on end to run around the Congress to get the Comprehensive Immigra-tion 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 US without authorization, grant deferred action, treating individuals who entered the US without visa as “parolees” to enable them to adjust status in the US, making it easier to obtain waiver of inadmissibility, several other reliefs presently not available or difficult to obtain. The draft memorandum, which has been leaked without permission of USCIS, examines the legal framework of Immigration and explores possible solutions. This is the second part of the article on this memorandum.

A. To promote family unity
Expand the use of parole-in-place
USCIS has the discretionary authority under the INA to parole in the US 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 US who has not been admitted shall be deemed an applicant for admission. Granting parole to aliens in the US, 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 US 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 US citizen or lawful permanent resident parent, spouse, son or daughter. For example, where the applicant is the spouse of a US citizen and also the primary caretaker of a disable child or children, PIP could be used to enable adjustment in the US Other applicants, including those, who are elderly or who have lived for many years in the US, 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 US even if he is married to a US 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 US, is considered having legally entered the US and, therefore, he or she can adjust status in the US based upon an immigrant visa petition filed by US 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.

Amend the unlawful pre-sence 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 three-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.

Lessen the standard for demonstrating “extreme hardship”
The INA renders inadmissible for three or 10 years individuals, who have been unlawful present in the US 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 US 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 US 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. 

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 US 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.
To be continued

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