America’s Immigration System has been broken for quite some time
now. Employment verification rules put in place in 1986 have been
a colossal failure, the ranks of the undocumented have swelled,
and the lines for those seeking to enter the country legally have
grown exponentially. Repeated attempts by both Democratic and
Republican administrations have failed to gain the Congressional
support needed to effect major reform. Against this backdrop the
Obama Administration has chosen to act without Congress.
Last year a working group within the U.S. Citizenship &
Immigration Services (“USCIS”) explored a variety of
administrative alternatives to comprehensive immigration reform
and came up with a list of recommendations. Their memo outlines
a series of steps that the administration can take to promote
family unity, foster economic growth, achieve significant process
improvements, and reduce the threat of removal for certain
individuals present in the U.S. without authorization. These
recommendations do not change existing law, but instead take a
creative look at existing forms of relief (such as parole-in-place,
deferred action and the discretion to not put someone in removal
proceedings) and apply them to various perceived problems.
One of those problems is the clogging of the immigration court
system with non-priority removal cases. Over the past several
years the Obama Administration has significantly increased the
apprehension and removal of undocumented immigrants. Foreign
nationals have historically been placed in removal proceedings if
they were apprehended, denied a benefit, or arrested even for a
minor traffic offense. As a consequence the immigration courts
have become clogged with immigrants the government is seeking
to remove, causing processing and detention times to be drawn out,
draining valuable government resources. Last summer the Obama
Administration announced that it would no longer place every
undocumented alien in removal proceedings and instead would
focus on the speedy removal of the most dangerous offenders, and
past immigration violators. This process known as “prosecutorial
discretion” has been addressed in previous issues of our newsletter
and an update on its implementation is also included elsewhere in
this newsletter.
Another perceived problem is the plight of thousands of
undocumented immigrants who are married to US Citizens or
who have citizen children who are stuck in limbo. Also addressed
in our last issue, many of these immigrants are eligible to receive
green cards through their spouses or children. However, they
remain in limbo because the law requires them to leave the US and
triggers either a three or a ten year bar on their re-entry. While a
waiver is available based on “extreme and unusual hardship” to
qualifying family members, few, if any risk the trip home because
there is no guarantee that the waiver will be granted. To address
this problem the Obama administration has agreed to modify the
rules to permit their waivers to be processed here in the US prior
to their departure, thereby significantly reducing the risk that they
will be stuck in their home country while their spouse and children
await their return. This waver process is addressed in more detail
elsewhere in this newsletter. While the working group suggested
that USCIS could loosen up its “extreme hardship” standard,
which is very difficult to meet for this and other waivers, no
announcement has been made on this front yet.
Other reforms that have been implemented as a result of this
memo are improvements in the EB-5 job creation visa program,
to reduce significant delays in visa processing. Deferred action
is also being taken in some instances on the removal of same sex
spouses in proceedings pending a determination by the Supreme
Court as to the Constitutionality of DOMA (the Defense of
Marriage Act). Deferred Action and Parole-in-Place has also been
extended to certain individuals brought to the US as minors, who
would otherwise benefit from passage of the Dream Act, which
Congress has failed to pass. While USCIS is still considering
other suggestions contained in this memo, such as the granting of
employment authorization to those in deferred status, or to spouses
of certain legal non-immigrants, it remains to be seen just how far
the Obama Administration is willing to go to affect Immigration
Reform. It is also unclear how much of this Congress will tolerate as
the President’s critics proclaim these actions a “back door amnesty.”
Should there be a change in administrations in 2013, it is quite
possible that these changes will be reversed.