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The Path Less Taken: Is There An Alternative To Waiting For Comprehensive Immigration Reform?

by Gary Endelman and Cyrus D. Mehta

Editor's note: The central assumption of immigration advocates is that only Congress can ameliorate the immigration crisis. Whether it is inadequate quota numbers - both family and employment, or the absence of options for "other worker" temporary visas, or anything else, it has long been presumed that only Congress can remedy the situation. This article by Gary Endelman and Cyrus Mehta questions the "only Congress can solve this" supposition. The article argues that there is ample room in the Immigration and Nationality Act, for the Executive Branch, acting alone and without Congress, to take decisive curative action. The key is to separate permanent residency from the two critical benefits that flow therefrom - legal work authorization and ability to travel. Both of these benefits can be made available, by Executive fiat, to millions of immigrants - both present and future, immediately, without any act of Congress. Once these benefits are in hand, Congress can grant permanent residency and citizenship, when the time is propitious, without being held hostage by the anti-immigrationists. This article explores how the once-unthinkable can be achieved lawfully through the enlightened use of President Obama's and Secretary Napolitano's inherent discretionary authority under the current statutory regime. We urge all those involved in immigration advocacy to take a close look at the intellectual ammunition in this article to chart a new path to the promised land of immigration benefits.[Ed. note ends here]

"Two roads diverged in a wood, and I--
I took the one less traveled by,
And that has made all the difference."
Robert Frost: The Road Not Taken (1915)

America should not wait for Congress to solve most of its major immigration problems. While we do need new law, what we need even more than that, perhaps far more, is a new vision, a willingness to examine existing law from a novel perspective. Given renewed political will, the Executive can take sweeping action on its own initiative. Action no longer should take a back seat to the endless controversy over comprehensive immigration reform.

Congress is back in session and, like the return of spring, we wait in transfixed anticipation for this year's great debate over comprehensive immigration reform. When the cherry blossoms return to Washington, so does CIR. Both sides are digging in, dusting off old arguments, reviewing past tactics, and vying for the heart, soul and support of the new Administration. It has now become accepted folk wisdom to assume that only Congress can solve our immigration woes and then only through the mechanism of CIR. So deeply is this believed, that it has become an article of faith embraced by friend and foe alike, so secure that it no longer needs explicit expression. The corollary of such a credo is that nothing can be done unless everything is done, that the nation is powerless to take more limited measures that do not require legislative consensus. That means we can do nothing to bring the undocumented in from the shadows, nothing to alleviate the economic pain caused by the lack of H-1B numbers, nothing to give hope to essential workers, nothing to get around the lifetime exclusion resulting from membership in the Other Worker Gulag, nothing to regulate future migration flows or make sense out of past ones, nothing to unite families now separated by shameful quotas that make a mockery out of our stated national commitment to family values, nothing to stay the sword of the 3/10 year bar- nothing at all about anything we care about. Why? Why are we as a nation impotent, fated to stand silent and mute while all around us the need for action becomes ever more imperative? Because Congress cannot act. Because CIR has proved so difficult to achieve. Because no one can agree on what divides us. Is there a better way? We believe there is and we hope that, at the end of our essay, you will share that belief and act upon it so that America's immigration policy will no longer be waiting for Godot, in thrall to an illusion of CIR that may never come and does not have to. Now we can begin.

Dinesh Shenoy had it right when he wrote in 2005 that "cut-off dates are a function of the fact that America does not have unlimited immigration.1 We know from Section 245(a)(3) of Immigration and Nationality Act (INA) that no one can apply for adjustment of status to lawful permanent resident unless an immigrant visa number is immediately available to them. Similar numerical constraints regulate consular processing as determined by INA Section 203. The place in line for a prized green card number is known in legal parlance as a priority date established through the filing of an immigrant petition or labor certification.2 As the waiting lines grow ever longer and frustrations rise, the question naturally presents itself: Is there an alternative to priority dates?

It was Dinesh Shenoy's great leap forward to suggest that Congress amend INA Section 245(a)(3) to allow for the submission, though not final approval, of employment-based adjustment of status cases without respect to priority dates. Since insight is original, Dinesh deserves to be allowed to speak for himself: "With this revised language, an I-140 beneficiary would be able to file his or her I-485 once an I-140 is filed, even if they know it will be many years before their priority date is reached." In order for this to happen, of course, USCIS would have to remove the requirement for an immediately available immigrant visa number from the operative regulations that govern adjustment of status, namely 8 CFR 245.1(g)(1) and 245.2 (a)(2). Other changes would also be necessary. Under the Child Status Protection Act, one needs an approved petition and a visa number to freeze the age of the child. If there is retrogression after such visa availability, the age remains frozen. However, if the precondition of a current priority date is removed or relaxed, then language will have to be inserted in INA Section 203(h)(1)(A) that will freeze the age of the child upon the filing of an I-485 adjustment application even if an immigrant visa number is not available. It will do little good to allow the parent(s) to apply for adjustment of status if their kids age out and have to leave. It would also be prudent to modify the definition of "child" set forth in INA Section 101(b)(1) so that it would then read to mean " an unmarried person under age twenty-one except for one who had applied for adjustment of status under 8 USC 1255."

It does not diminish the magnitude of Dinesh Shenoy's conceptual breakthrough to note that it raises several serious questions. First, it is limited to applicants for adjustment of status applicants who enjoy a signal advantage not shared by those applying for immigrant visas at American consulates abroad. However, one wonders if we can still speak of an even playing field in the aftermath of INA Section 204(j) that extends occupational mobility to adjustment applicants in a way not open to equally long-suffering consular cases.3 To the extent that one wants everyone to play by the same rules, why not allow immigrant visa applicants to apply for immigrant visas, but not be able to use them to gain entry into the USA unless and until an immigrant visa number became immediately available to them? Such a restriction could, in fact, be annotated on the face of the machine-readable immigrant visa itself to prevent any attempt at premature exercise. Second, as originally expressed, it would only apply to employment cases rather than those based on family ties. Our proposal would extend this innovation to reward the beneficiaries of approved family-based I-130 petitions. This is the answer to the wholly inadequate Family 2B category that divides families in defiance of compassion and logic. Now they can stay in the USA while they wait for their priority date to become current. Third, because prior approval of the I-140 is not required, it assumes that the current practice of concurrent filing of I-140 petitions and I-485 adjustments will continue when we know that USCIS wants to end this practice and intends to publish a notice of proposed rulemaking.4 Finally, it is highly instructive to ask whether there is a new and better way to define what "immediately available" means in the context of visa allocation. Is a current priority date the only way?

For the past twenty-five years, the Visa Office in the State Department has employed a more flexible mechanism to ensure a smooth and regular allocation of immigrant visas known as the "qualifying date". What is that? Simply stated, the VO anticipates what priority dates are likely to come on stream over the next 6 to 12 months, though this is subject to variance, and it then allows the National Visa Center to kick off the consular processing for these cases by sending out the Choice of Agent form. Once this response is received, the NVC lets folks know what further documentation is required and, as soon as all necessary paperwork has been provided, the case can be reported to the Visa Control branch of the Visa Office in the State Department as being documentarily qualified. That demand can then be compared against the amount of visas which are available for use in a particular month during the determination of the monthly cut-off dates. Those cut-off dates ultimately allow a case to be scheduled for a consular interview and hopefully receive their prized immigrant visas just as soon as the Visa Bulletin says they have an eligible priority date.

Now, this has worked pretty well in the consular context to smooth out the flow of immigrant visas so one wonders if the results would be no less stellar as a way to define immediate availability in the adjustment context. Even under the traditional priority date scheme, there is nothing in the INA that compels a particular definition or understanding of what "immediate availability" means. To require a current priority date as the only acceptable interpretation is to continue a practice that began before migration flows to this country reached the massive levels we have today. What worked before may no longer be adapted to current needs or contemporary realities. If we are to preserve the utility of priority dates as a control on permanent immigration, we have to understand and use them in a fundamentally new and different way.

USCIS does not have to define "immediate availability" strictly on the cut-off dates listed in the Visa Bulletin. Rather, both State and CIS could post estimated "qualifying dates" on their websites so that, precisely as now happens in a consular case, USCIS would now allow pre-filing of adjustment applications so that applicants could begin to assemble the necessary documentation and send in their I-485 packages so that USCIS could conduct necessary checks and get the case ready for formal submission when the priority date is reached. Only at that point would CIS formally request an immigrant visa number from the State Department. Not until then would the adjustment of status be considered "filed". The beauty of this is that Congress need not lift a finger; all that need be done is for USCIS to modify the definition of filing contained in 8 CFR Sections 103.2 (a)(7) and 245.2(a)(2). If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the I-485 is "filed". Nothing could be simpler. The reason to seek Congressional modification of INA 245(a) is not because it is only way forward but because, by enshrining such a procedural benefit in the INA itself, it will be a much more secure right, one not subject to administrative whim or unilateral repeal. This process would not only afford the Visa Office a more accurate picture of adjustment demand but it holds out the potential of drastically slashing processing times. Far from granting adjustment applicants any special or unfair advantage, the use of qualifying dates as a way to define immediate visa availability would serve to harmonize the green card process in and out of the United States. Clearly, close and constant coordination between the Visa Office and USCIS would be required and integration of this procedural innovation with the Child Status Protection Act is transparently necessary. Given the obvious and not insignificant benefits, any transitional angst is surely worth the effort.

Dinesh Shenoy is not alone. It appears that Janet Napolitano, formerly Governor of Arizona but now the newly-minted Secretary of the Department of Homeland Security, is thinking of permitting adjustment of status applications to be filed before the priority date becomes current. Take a look at her January 30, 2009 Action Directive on immigration and border security. In pertinent part, Secretary Napolitano spoke of "information sharing with the Department of State's Bureau of Consular Affairs on projected adjustment caseloads to be used by that Bureau in setting each month's cutoff dates on waiting lists for immigration categories that are limited by a yearly quota" and went on to pose this very intriguing question: "What regulatory or legislative changes (including a possible pre-application filing procedure for adjustment cases) are recommended to facilitate caseload planning and make optimum use of US Citizenship and Immigration Services' adjudication capacity?5 If Secretary Napolitano wanted some precedent to support her curiosity, she need look no further than S. 2611 actually passed by the US Senate in May 2006. As part of this comprehensive immigration reform measure that died in the House of Representatives, the Senate amended INA Section 245(a) to allow for foreign-born students who had earned an "advanced degree", though not necessarily from a US university, in sciences, technology, engineering or mathematics (the famous STEM quartet!) to file for adjustment of status irrespective of priority date currency on the basis of an I-140, though no final approval could issue until an immigrant visa number became available. Interestingly, the Senate did not extend this exception to family-based adjustments nor to immigrant visa applicants outside the United States.

If this made sense in 2006, why not now? After all, as the USCIS has already recognized in the Optional Practical Training context by allowing a 17 month renewal as an antidote to the manifestly inadequate H-1B quota, announced quote openly by CIS as the prime rationale for their liberality, STEM students are uniquely important to the USA.6 If we are willing to treat them differently for OPT purposes, why not do so for far more weighty adjustment of status purposes? If we are concerned over potential abuse, launch it as a pilot project that is limited by time (perhaps two years as with other conditional categories) and number, say 65,000 to match the pitiable H-1B quota. In the 90 days before the second anniversary of what the authors call the "grey card"7 will have to file a petition to lift the condition, thus giving the USCIS a second chance to determine if the grey card's continued presence in the United States was in the national interest. That ought to show good faith! Throw in the requirement for the advanced degree to be made in America, something that Dinesh Shenoy left out, as noted above. At the same time, to allow for future expansion, add a provision authorizing USCIS in its discretion to extend this same remedial practice to other professions or disciplines, perhaps those best suited to health care or growing a green economy. Without Congress authorizing a single new immigrant visa, this one procedure will revolutionize employment-based migration. When combined with adjustment of status portability under INA 204 (j), this quasi-permanent category of green card applicants card will be able to live as permanent residents in all but name. In effect, a new era of vastly increased legal immigration would result from a return to system preceding the 1920's national origins quota system. By increasing the opportunity for legal immigration without the need for congressional action, such an approach combines simplicity with maximum opportunity. This is ample precedent for doing this beyond the Senate enactment of S. 2611. In 1997 the noted immigration scholar Julian Simon wrote a book in which, among other things, he argued that special preference for permanent residence should be given to foreign students who came to study in the USA.8 Simply stated, retain the general notion of a current priority date but waive it for select reasons of higher national interest. The logic of doing this is not terribly dissimilar from the concept of the EB-2 national interest waiver where the national interest of reserving jobs from Americans rightly gives way in carefully chosen instances to the retention of foreign nationals whose recognized contributions justify such exception. Do the same thing for the same reasons to allow adjustment of status applications to be filed, though not approved, without immediate availability of an immigrant visa number.

Dinesh Shenoy made a huge first step but it was only a first step. Is action by Congress the only, or even the best, way to break the priority date stranglehold on US immigration policy? The authors do not think so. Amendment of INA Section 245 is unlikely since action by Congress, even in the best of times, takes time. When Congress finds such time, legalization and other priority items (like recapture of unused visas) will absorb it. Beyond this, is it necessary to relax the rules on adjustment of status? What do potential immigrants really want for themselves and their spouses? The ability to work in the United States on a long-term basis and travel back home for vacation and/or family emergency. Can they only do that as adjustment applicants? Is there another way? The authors think there is. While INA Section 245 conditions adjustment of status on having a current priority date and meeting various conditions,9 there would be prohibition anywhere that would bar USCIS from allowing the beneficiary of an approved I-140 or I-130 petition to apply for an employment authorization document (EAD) and advance parole. No action by Congress would be required; executive fiat suffices. For those who want some comfort in finding a statutory basis, the government could rely on its parole authority under INA Section 212(d)(5) to grant such interim benefits either for "urgent humanitarian reasons" or "significant public benefit.10 There is nothing in 8 CFR Section 212.5 that would prohibit the DHS from granting parole for this reason on the grounds that the continued presence of I-140 or I-130 beneficiaries provide a significant public benefit. Since such parole is not a legal admission,11 there is no separation of powers argument since the Executive is not trying to change existing grounds of admission or create any new ones. Moreover, Congress appears to have provided the government with broad authority to provide work authorization to just about any non-citizen.12

It is undeniably true that more EAD and Parole benefits will be of limited value to retrogressed non-citizens from India and China who are already in the US in the employment-based second and third preferences. After all, most have an H-1B and can extend under Section 106(a) or Section 104(c) of AC 21, but as noted previously, some may still not be able to take advantage of AC 21. The EAD in itself will not have a portability benefit. The foreign national will still need to intend to work for the sponsoring employer even if he/she is using the EAD for open market employment. This reservation, valid as it undoubtedly is, focuses only on those already here. It speaks solely to past migration flows not to future ones. For future flows, this will supplement the H-1B by giving employers of foreign nationals another option. No longer will the constant controversy over the H-1B quota discredit all employment-based immigration in the eyes of its critics and, most importantly, in the court of public opinion. No longer will this one dispute suck all the oxygen out of our national immigration debate. Beyond that, it is manifestly not true to argue that all of our immigration needs can be solved with more H1B numbers. This will not work for those who are not H1B material. It will not work for those with essential skills but find themselves in the "Other Worker" backlog under INA Section 203(b)(3)(iii) with no hope of getting the green card any time soon. It will not eliminate the need to legalize the undocumented. If anything, allowing non-citizens with approved I-140/ I-130 petitions to receive EADs and Parole will serve to reduce the size of the permanently undocumented in America many of whom do not leave for fear they will be unable to return. The Executive would not be granting the undocumented legal status for that is what only Congress can do. But, like adjustment of status itself, the Executive certainly can create a period of stay that permits the undocumented to remain here.

While those out of status or who entered without inspection should not receive employment authorization on a retroactive basis, there is no reason in law or logic why the Executive cannot grant parole on a nunc pro tunc basis.13 Leaving aside the troubling question of whether such a policy change would not reward conduct that violates the law, the retroactive EAD would only cure the unauthorized employment problem but not the overstay or unlawful presence problem. The 3/10 year bar14 is not triggered by a violation of status resulting from unauthorized employment but an overstay past the I-94 validity. For this reason, a retroactive EAD would do nothing to ameliorate the crushing harshness of the 3/10 year bar, though it might restore eligibility in some situations to adjust by avoiding the unauthorized employment preclusion of INA 245(c).15 What would cure the prior unlawful presence would be a retroactive granting of parole. Look at the definition of "unlawful presence" in INA 212 (a)(9)(B)(ii). It speaks of being "present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled." So, if you are present in the USA on parole, you are not accumulating any unlawful presence. You can grant retroactive parole without overriding the will of Congress. There is no separation of powers problem. By its very nature, parole is discretionary and, as such, can be issued nunc pro tunc for good cause shown. Being the Beneficiary of an approved I- 140 or I- 130 could be deemed by regulation to constitute such good cause.

The use of parole by the Executive acting sua sponte in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict come readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. Even those who are in removal proceedings or have already been ordered removed, and are beneficiaries of approved petitions, also need not wait until eternity for Congress to come to the rescue. The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien.16 This safety valve will fix our broken system of future flows by allowing those who could not qualify for any other visa option to have new hope and unimagined choices.

There are those who argue that only Congress can make immigration policy in this fundamental way and this reservation is both serious and worthy of deep respect. Yet, we have a dysfunctional Congress that is or appears to be incapable or unwilling to reach consensus on immigration. Do we as a society simply throw up our hands and do nothing, allowing a bad situation to become worse or do we use this challenge as an opportunity to create something better through temporary and targeted executive action that Congress can either overturn or accept at a later date? There are several examples of administrative action to create new immigration policy in the face of Congressional inaction in recent years. In the STEM OPT regulation, the USCIS openly admitted that granting an additional 17 months of employment authorization was a regulatory response to an inadequate H1B quota. When they limited the validity of a labor certification of 180 days, the US Department of Labor did so on their own without the fig leaf of legislative authorization.17 Remember when the AAO handed down the decision in New York State Department of Transportation,18 thus effectively repealing the national interest waiver statute for several years until the relaxation came?19 Finally, under the Cuban Adjustment Act of 1996, even if the Cuban national entered without inspection, the former INS Commissioner Doris Meissner clarified that the Service could use its authority under the humanitarian and significant public benefit criteria in Section 212(d)(5) to parole Cubans who had entered without inspection under the fiction that the individual would surrender to the government, which in turn would release or parole him or her, and thus render them eligible for adjustment of status under the CAA.20 Did Congress tell them they could do that? All of these actions, and many others not singled out, had profound effect but depended solely upon the imaginative exercise of executive authority yet consonant with a proper respect for separation of powers. So we can do so here.

Those who do not think so ignore at their own peril and ours the fundamental distinction between making policy, which only Congress can do, and implementing tactical adjustments, which the Executive is uniquely suited to do. This is why only Congress can create a legal status while the Attorney General can authorize a period of stay. This is why only Congress can enlarge the EB quota but the Executive can allow adjustment applications without a quota expansion so long as final approval is not forthcoming. This is why only Congress sets visa limits while the Executive can grant parole. This is why only Congress sets work visa law but the Executive can issue EADs. To suggest that Congress must act in both a long and short term context is to ignore the historic and legitimate differences between the two branches of government. If Congress wants to overturn such executive action, it can do so. Likewise, if it supports the President, it can stay its hand. Either way, Congress is expressing its will, whether through positive action in the form of legislation or negative action in the form of silent acquiescence. Both action and its absence are authentic manifestations of congressional intent and expressions of congressional authority. In reality, we all know that there are 40 votes in the Senate to uphold such regulatory initiative. Congress will be more than content to allow the President to take the lead and solve what it has manifestly been powerless to solve- how to regulate both past and future migration flows; how to solve the growing unskilled worker backlog; how to ameliorate the gratuitous cruelty of the 3/10 year bars; how to reduce the size of the undocumented population who may already working here and contributing to the exchequer and how to satisfy the hungry manpower needs of employers once the dark cloud of recession lifts without creating a single new immigrant visa.

When has so much come from so little? We do not say that CIR can be cast aside for there are many people who will never be the beneficiary of an I-140 or I-130. Ours is a far more modest proposal. We seek only to broaden the debate and widen the national conversation. Now is the time for what Franklin Roosevelt rightly called "persistent, bold experimentation." We must not wait for Congress to act. However important CIR remains, it is not the only way.

Authors Note:

The authors wish to extend special thanks to Charles Oppenheim, Chief, Immigrant Control and Reporting Division, Visa Services Office, United States Department of State for his valuable time answering questions regarding the operation of the numerical control process, to Robert Divine for his invaluable insights and to David Isaacson for showing how much flexibility there is within the existing INA.

© Gary Endelman and Cyrus D. Mehta All Rights Reserved 2009


End Notes

1Dinesh Shenoy, The October 2005 Visa Bulletin Warrants An Amendment to INA 245(a)(3), http://www.ilw.com/articles/2005,0916-shenoy.shtm. This article is dedicated to Dinesh Shenoy whose wisdom and insight made it possible.

2For a family-based petition, the priority date is established on the date that the I-130 petition is properly filed. 8 CFR Section 204.1(c), 22 CFR Section 42.53(a), 9 FAM 42.53 N.1. For employment-based petitions, the priority date is established on the date the labor certification is filed, or in cases that do not require the labor certification or where the labor certification needs to be submitted with the petition (such as Schedule A cases), the date the preference petition is filed with the USCIS. 8 CFR Section 204.5(d).

3INA Section 204(j), enacted by Congress in 2000 through the American Competitiveness in the 21st Century Act (AC 21), permits a labor certification or an employment-based petition to remain valid when the adjustment of status application has been pending for 180 days or longer even if the non-citizen changes jobs provided it is in the "same or similar occupational classification" as the job described in the labor certification. Also, note that Section 204(j) portability only benefits applicants while their application is pending and not after permanent residency is granted upon the availability of the priority date. See Cyrus D. Mehta, The Portability Paradox, www.cyrusmehta.com

4This item has been on the USCIS semi-annual Unified Agenda since 2006 in compliance with the Regulatory Flexibility Act, and it remains to be seen whether the abolition of the concurrent filing of I-140s and I-485s will ever be proposed or if it will remain on the wish list of some officials within the agency.See http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=090000648054de52

5http://www.ilw.com/immigrationdaily/news/2009,0203-immigration.shtm.

6The usual limitation of 12 months of Optional Practical Training does not apply to STEM (science, technology, engineering or mathematics) students who can extend their OPT for an additional 17 months if the employer is enrolled in the E-Verify program and agrees to various reporting requirements. 8 CFR Section 214.2(f)(10)(ii)(C).

7The authors credit Sam Udani for coining this most apt term.

8See http://www.juliansimon.com/writings/immigration (Chapter 16 is most pertinent).

9Pursuant to INA Section 245(c), unless the applicant is a VAWA petitioner or an immediate relative, any person who accepted unauthorized employment or was in unlawful immigration status is ineligible. Certain non-citizens, on the other hand, who accepted unauthorized employment or failed to maintain status may still be eligible for adjustment under the limited exceptions pursuant to Section 245(k) and 245(i).

10See also 8 CFR Section 212.5, which further spells out the various classes of aliens who can be granted parole. Such parole must be less than 365 days to avoid subtraction of an immigrant visa number pursuant to INA Section 201(c)(4)(A).

11See E.g. Leng May Ma v. Barber, 357 US 185 (1958).

12The authors credit David Isaacson for pointing out INA Section 274(h)(3) to us, which provides: "As used in this section, the term "unauthorized alien" means with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General (emphasis added)." Under these circumstances, an EAD could be issued to someone who has yet to have an approved I-130 or I-140 petition, and could possibly be granted in deserving situations. One scenario is where a bona fide labor certification, the first necessary step before an I-140 petition is filed under INA Section 203(b)(2) and (3), is not yet approved due to DOL processing delays, or has not been on file for 365 days. The foreign national's H-1B six year time limit is maxing out yet this person is unable to take advantage of an H-1b extension beyond the 6 years under Section 106(a) of AC21. It would be nice if Congress amended AC 21 but not likely. Even better, Congress does not have to do so. INA 274(h)(3) authorizes the Executive to issue an EAD to any person for any purpose under any circumstances and for any validity. Sub silentio, the USCIS has already relied on precisely this authority, perhaps not even realizing it, when it decided to issue a two-year EAD to eternally-waiting adjustment applicants with approved I-140s but not a current priority date.
http://www.uscis.gov/files/article/2yrEAD_FAQ_061208.pdf. The USCIS acted in response to tidal wave of visa retrogression. This sends an essential message to all with ears to hear it: Regulations do not exist in a vacuum. They are created in response to what the INA says or does not say, what the statute allows or prohibits. There is an inescapable policy dimension to any exercise of federal regulatory authority so the suggestions we advance here are but a new application of doing what already exists.

13The following observation by the Board of Immigration Appeals is worth noting in In re Garcia-Linares, 21 I.&N. Dec. 254 (BIA 1996): "We note initially that there is no provision in the immigration laws that expressly authorizes nunc pro tunc permission to reapply for admission to cure an alien's failure to obtain such permission prior to reentry after deportation. However, even prior to the enactment of the Immigration and Nationality Act of 1952…there had been an administrative practice of granting relief "in a few well defined instances." (citation omitted). See also Matter of Roman, 19 I.&N. Dec. 855 (BIA 1988).

14A non-citizen who is unlawfully present in the United States for more than 180 days or 1 year can trigger the three year or ten year bar respectively upon departing the United States pursuant to INA Section 212(a)(9)(B)(i)(I) or (II). As a result of the potential for triggering these bars, many potential immigrants with approved I-130s and I-140s who are unable to adjust status in the US do not leave the US to process their immigrant visas at a US consulate overseas, which has contributed to the huge undocumented immigrant population in the US.

15It can be argued that the retroactive grant of parole and EAD may render a family-based immigrant, or an employment-based immigrant who entered on a nonimmigrant visa but overstayed (although not one who entered without inspection), eligible to adjust status in the U.S., on the theory that the grant of nunc pro tunc parole would render the applicant to have maintained lawful status. The only place in Section 245 where the applicant must have maintained lawful nonimmigrant status is under Section 245(c)(7), which is limited to EB immigrants and not family-based immigrants, and which can be overcome by INA 245(k) for aliens who are present pursuant to a lawful admission and have not accumulated more than 180 days of unauthorized employment or failure to maintain a lawful status, INA Section 245(k)(2).

David Isaacson correctly observes that the term "status" isn't defined anywhere in the INA. While conventional wisdom and traditional interpretation say that parole is not a status, such an interpretation does not arise from a literal reading of the INA, nor does it arise inevitably by ordinary English usage. "Parolee status" is a perfectly natural way of describing someone who has been paroled. From this vantage point, parole is a lawful status in the sense that, by virtue of the parole, it is lawful for the parolee to remain in the United States, at least for the authorized period of time. There are other instances in the INA where lawful status for a non-LPR does not automatically equate with nonimmigrant status: for example, asylum status under INA 208 and refugee status under INA 207 would generally be described as lawful statuses, even though strictly speaking neither an asylee nor a refugee is a type of nonimmigrant according to the INA 101(a)(15) definition of that term. Parole is a status in the sense of being a classification given to aliens so that they can remain here under its prescribed terms and conditions.

Would not INA 245 (c)(2) prevent the alien from adjusting status despite retroactive EAD and nunc pro tunc parole? Only if you equate the continuous lawful status referred to in 245(c)(2) with nonimmigrant status. If "lawful status" and "lawful nonimmigrant status" meant the same thing, then the word "nonimmigrant" in 245(c)(7) would be superfluous: the paragraph would have the same meaning if it just said that EB adjustment applicants had to be in "a lawful status" at the time of application for adjustment, rather than "a lawful nonimmigrant status". There is a canon of interpretation that statutes should be interpreted when possible to avoid rendering words superfluous, which the authors think given the wording of 245(c)(7) supports David's view that "lawful status" need not equate to nonimmigrant status.

The Executive by regulation (or a court in an appropriate case) could declare parole under INA Section 212(d)(5) to be a status for 245(c)(2) and 245(k)(2) purposes, just as asylum under INA Section 208 or refugee status under INA Section 207 are. In all three cases, the Executive has been authorized by Congress to allow people into the U.S. in a capacity that is neither LPR nor, strictly speaking, nonimmigrant. True, INA Section 101(13)(B) does say that parolees are not "admitted", but then again it's not clear that one who enters without inspection and is granted asylum under Section 208 has ever been "admitted" per the statutory definition of that term, and yet such a person still has a lawful status. If Congress had wanted to import a lawful "admission" into 245(c)(2), Congress would have used that word; they didn't. And while the overall title of INA 245 does refer to the adjustment of status of nonimmigrants, there's a canon of interpretation that the title of a statutory provision does not control over the actual language, and we know from the mention of parole in INA 245(a) and the exemption for immediate relatives in 245(c)(2) that at least some aliens who are not nonimmigrants can adjust under INA 245. INA 245(k) does require the alien to be present pursuant to a lawful admission, however, so that employment-based immigrants who entered without inspection would not be able to adjust status even under this aggressive theory.

16Although former O.I Section 242.1(a)(22) has been withdrawn, Deferred Action is still available. See Meissner, Comm., Memo, HQOPP 50/4 (Nov. 17, 2000), published on AILA InfoNet at Doc. No. 00112702. Moreover, a removal order can be reopened upon the agreement of the respondent and the government, especially when relief such as adjustment of status under Section 245 becomes available many years later. 8 CFR Sections 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). At present, the government attorney has unfettered discretion and is often niggardly in acceding to a request to join in a motion to reopen. The DHS can institute a standard policy for all government attorneys to follow in the event that the DHS provides benefits to beneficiaries of approved petitions. There is no reason to treat a non-citizen in removal proceedings differently just because he or she was unlucky to have been apprehended and placed in removal proceedings.

1720 CFR Section 656.30(b)(1). This limitation was upheld in Durable Manufacturing Company v. US DOL, 2008 U.S. Dist. LEXIS 89885, 2008 WL 4785964 (N.D. Ill 2008), which stated that the DOL had inherent authority to promulgate regulations under INA Section 212(a)(5).

18See 22 I&N Dec. 215 (Assoc. Comm'r 1998).

19The National Interest Waiver, pursuant to INA Section 203(b)(2)(B)(i), which permits a waiver of the job offer and labor certification requirement, if the applicant can demonstrate that it is in the national interest. An applicant applying for the National Interest Waiver, at present, has a very difficult burden to overcome. Under the criteria set forth in Matter of New York State Dept. of Transportation, supra, the applicant must satisfy a three-prong test. With respect to the first two, the applicant must show that he or she will be employed "in an area of substantial intrinsic merit" and that the "proposed benefit will be national in scope." It is the third that is extremely opaque and difficult to overcome. The petitioner must demonstrate that "the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien." The AAO went on to further illuminate this criterion as follows: "Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications." Overcoming the third criteria is difficult, and allows the USCIS to shoot down the best of arguments made by a national interest waiver claimant. Indeed, the USCIS can always resort to this subjective criterion to thwart even the most meritorious of claims, which is that the claimant does not overcome the inherent interest of the government in making the job available to US workers.

20Memo, Meissner, Comm., Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a Designated Port of Entry, HQCOU 120/17-P (April 19, 1999), available at http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=b97d8b1a12b3aec464971c659ad3f28.


About The Author

Gary Endelman obtained a BA. History, University of Virginia, PhD in U.S. History, University of Delaware (1978), J.D., University of Houston (1984). He has practiced immigration and nationality law in Houston in private practice (1985-1995) and as the in-house immigration counsel for BP America Inc. handling all US immigration law for the BP Group of Companies throughout the world since March 1995 until the present. Dr. Endelman is Board Certified in Immigration and Nationality Law. He is a frequent speaker and writer on immigration related topics including a column on immigration law. He served as a senior editor of the national conference handbook published by the American Immigration Lawyers Association for a decade. In July 2005 Dr. Endelman testified before the US Senate Judiciary Committee on comprehensive immigration reform. Dr. Endelman is the author of " Solidarity Forever: Rose Schneiderman and the Women's Trade Union Movement" published in 1978 by Arno Press. All opinions expressed herein are the personal views of Gary Endelman and do not represent those of BP or BP America in any way.

Cyrus D. Mehta a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. The firm represents corporations and individuals from around the world in a variety of areas such as business and employment immigration, family immigration, consular matters, naturalization, federal court litigation and asylum. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International Who's Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration-related issues, and is also an Adjunct Associate Professor of Law at Brooklyn Law School where he teaches a course entitled "Immigration and Work." All opinions expressed herein are the personal views of Cyrus D. Mehta and do not represent those of the organizations he has been part of in the past and presently.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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