Administrative alternatives to comprehensive immigration reform – Part I

Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

By Michael Phulwani
The 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. It is an undated  internal memorandum, which was not supposed to be made public but was released a few days ago by Senator Charles E. Grossley, Republican of Iowa. The draft memorandum, which has been leaked  without    the 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 Law-yers 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. This is the first part of the article on this 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 re-quires the development of specific written guidance and/or regulatory language, implementation protocols, outreach and training within USCIS and coordination among DHS immigration components.
To promote family unity
Allow TPS (Temporary Protected Status) applicants, who entered without Inspec-tion to Adjust or Change Status.

Individuals in TPS continued to be deemed ineligible to adjust or change status in the US 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  r change status. Opening this pathway will help thousands of applicants obtain lawful permanent residence without having to leave the US. The SPC is poised to review this issue. 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.
To be continued…

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