Obama Administration Exploring Administrative Alternatives to CIR

Several weeks ago, Senator Charles Grassley, and seven other GOP senators wrote to President Obama asking him whether his administration had plans “to unilaterally extend either deferred action or parole to millions of illegal aliens in the United States,” in the absence of comprehensive immigration reform. Having received no response by the end of July, Senator Grassley wrote again, this time to Homeland Security Secretary, Janet Napolitano, to express concern about “potential plans for a large-scale effort to offer parole or to defer action on undocumented aliens in the United States.” (See Senators Again Ask Administration if Plans are Underway for Large-Scale de facto Amnesty, Press Release, 26.Jul.2010, Office of Senator Charles Grassley.) The letter asked that DHS provide information on how it has used deferred action and parole over the past five years, and for a response no later than August 16th.

Later in the week, Senator Grassley released a draft of an internal memorandum from USCIS, entitled “Administrative Alternatives to Comprehensive Immigration Reform,” exploring legal options for providing administrative relief, “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.” (See the memo, PDF 1.6MB.)

According to the draft memo, the options under consideration are:

  • Allowing Temporary Protected Status (TPS) applicants who entered the U.S. without inspection to adjust status to lawful permanent residency (“green card”) status; this option is designed “to promote family unity,” and would require USCIS to reinterpret two 1990 General Counsel Opinions;
  • Allowing adjustment of status to non-TPS applicants who were deemed inadmissible because they entered without inspection, under a discretionary “parole-in-place” mechanism;
  • Working with the Department of Commerce to “consider creative ways to make the EB5 [investor visa] program more accessible to foreign investors…”;
  • Allowing long-term nonimmigrants – such as F, O, TN, P, and E visa holders – to travel overseas without advance parole while their adjustment-of-status (green card) applications are pending, thereby extending a privilege currently given to H and L nonimmigrant visa holders; according to the memo, “They also would be allowed to maintain their nonimmigrant status if USCIS denies their adjustment [green card] applications.”
  • Extending employment authorization to dependent spouses of certain skilled workers, such as H1Bs;
  • Extending the time granted to nonimmigrant workers to wrap up their affairs and depart the United States, when their periods of authorized presence have expired. The proposal would extend the current 10-day “grace period” to 45 or even 90 days;
  • Granting deferred action to removable persons who lack a family-based or employment-based remedy to avoid removal, when removal is not in the public interest. According to the memo, “This would permit individuals for whom relief may become available in the future to live and work in the U.S. without fear of removal.”
  • Avoiding the issuance of Notices To Appear (NTAs) where an applicant is removable, but has no significant immigration or criminal history, and no relief potentially available to avoid removal;
  • Relaxing current standards governing inadmissibility waivers, allowing more applicants to avail themselves of this remedy by lessening the “extreme hardship” standard.

If adopted, these measures could provide the impetus for Congress to finally turn its attention back to comprehensive immigration reform, to craft a legislative solution on its own terms. In the meantime, there will be no shortage of demagoguery on the issue, and we should expect to hear the word “amnesty” bandied about in TV and radio commercials until the first Tuesday in November.

It should be noted that, at present, these options are merely under discussion, and it is too early to tell whether any of the above ever will be adopted – and if they are, when that might occur. In the event that these measures ever become official USCIS policy, we will keep our readers informed via this blog, as well as MurthyDotCom and the MurthyBulletin.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.