USCIS Eases Removal of Certain Immediate Family Members of U.S. Citizens

With budgetary issues and other last-minute business occupying the little time remaining in the first session of the 113th Congress, the smart money is betting against any further action on comprehensive immigration reform (CIR) legislation this year. [See Immigration Reform: Better Luck Next Year, We Hope, MurthyBlog, 22.Nov.2013.] Despite the lack of action on Capitol Hill, small-bore immigration reforms are going forward at the administrative level, part of President Obama’s campaign to keep the pressure on Congress.

The latest case in point: on November 14th, U.S. Citizenship and Immigration Services (USCIS) announced a policy change that will allow immediate family members of U.S. citizens to avoid removal (deportation) when they have overstayed a lawful admission under the Visa Waiver Program (VWP). The new policy will also allow them to apply for adjustment of status (permanent residency). [See USCIS Policy Memorandum PM-602-0093, Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program, 14.Nov.2013.]

As the policy memo notes, the remedy is discretionary, not automatic, and will not be available when: 1) Immigration and Customs Enforcement (ICE) has already issued a removal order, unless the removal order is withdrawn or rescinded; 2) the applicant “is under investigation for, has been arrested for (without disposition), or has been convicted of an egregious public safety offense,” or 3) the applicant’s case raises fraud and/or national security issues that need resolution.

Although some in the anti-immigrant camp are sure to rail against this policy change as an administrative overreach, the impact is likely to be modest because it’s limited to immediate family members of U.S. citizens, and further limited to the subset of those who entered from VWP countries – generally speaking, from the U.K. and other developed economies of Western Europe, as well as Australia, Brunei, Japan, New Zealand, Singapore, South Korea, and Taiwan. [See Visa Waiver Program Designated Countries, U.S. Customs and Border Protection.] Though this won’t bring relief to the millions of undocumented immigrants who still await progress on immigration reform, it may help to spur legislative action when Congress reconvenes in January. Stay tuned.

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