• September 2010

What You Need to Know About A Controversial Memo Leaked From USCIS

By Linda Rahal
Attorney / Owner / Founder
Trow & Rahal, P.C.

A new controversy around immigration was unleashed on July 30 when four senior officials at U.S. Citizenship and Immigration Services (USCIS) sent an internal 11-page memo to the director. Entitled, “Administrative Alternatives to Comprehensive Immigration Reform,” it outlines possible ways to provide immigration relief administratively — in both legal and illegal immigration.

As one could expect, Republican senators are up in arms, suggesting that the memo indicates that the Obama administration is “conspiring” and “scheming” to allow millions of illegal immigrants to stay and work in the U.S.

Understanding the controversy

The memo was reportedly obtained by Iowa Republican Sen. Charles Grassley, who said that the intent is “to find very secret creative ways to unilaterally circumvent the law and have a backdoor to amnesty.”

According to the memo: “The following options … used alone or in combination … have the potential to result in meaningful immigration reform absent legislative action.” It also suggests ways to reduce the threat of removal for many illegal immigrants through administrative and regulatory changes, characterizing one as “a non-legislative version of amnesty.”

There have been numerous stories in the news about the memo, including passionate requests from Republican senators who have called for an investigation into what they say is “an end-run around Congress.”

However, the memo can also be seen as an attempt by the Department of Homeland Security to think open-mindedly about solutions to some of the problems in our immigration system. In fact, many of the solutions proposed could foster economic growth and family unity and could further other goals that serve the country’s interest.

USCIS proposals that should NOT be widely controversial, and could assist the business and legal immigration community

Expanding the concept of dual intent. The USCIS memo proposes to extend the concept of dual intent to long-term nonimmigrants, including those with F, O, TN, P, and E visa status. At this time, USCIS regulations only permit individuals holding H-1 (specialized workers) and L-1 (intra-company transfers) visa status to be in nonimmigrant visa status while at the same time pursuing their permanent resident status, which is their immigrant (“green card”) status. However, foreign nationals with any other visa status who have started the green card process can have potential problems if they re-enter the U.S. after travel abroad because they are not protected by dual intent.

Extending employment authorization to dependent spouses in H-4 visa status. One proposal in the memo would allow the dependent foreign national spouses of people in the U.S. in H-1B visa status to obtain work authorization. Currently, a person holding H-4 status is unable to work in the U.S. Under current regulations, spouses of people who are in another visa status such as L-1 or E-2 are already able to obtain employment authorization. The proposed change would allow spouses in H-4 status to apply for employment authorization in a limited circumstance in which the principal H-1B visa holder has started the green card process and has had to extend his or her visa status under specific circumstances.

Creating reasonable grace periods at the end of a nonimmigrant visa status. The memo explains that the current grace period of 10 days at the expiration of a visa status is insufficient. It recommends that USCIS amend its regulations to permit longer periods ranging from 30 to 90 days, depending on the employment category and the overall time spent in the U.S. by the foreign national. It is important to note that by statute, only H-1B visa status has a grace period of 10 days. Most other visa categories do not indicate any grace period at all — except for F-1 students, who are given 30 days, and J-1 exchange visitors, who are given 60 days.

Expanding expedited service under the Premium Processing Program (PPP). By statute, only certain types of petitions or applications are designated for the PPP, which does allow the payment of an extra $1,000 filing fee to have the case adjudicated in 15 days. The memo recommends expanding the PPP to include additional employment-based classifications — such as changes or extensions of all nonimmigrant status categories, applications for employment authorization, applications for advance parole, and all employment-based immigrant visa petitions (I-140).

Automatic extension of Employment Authorization Document (EAD). Currently, the USCIS is required to adjudicate applications for a work authorization document within 90 days. If the application is not filed more than 90 days before the expiration date, or the USCIS takes longer to adjudicate the application, there is a gap in the work authorization for the foreign national until the new EAD is issued. Under a proposal in the memo, USCIS would permit an automatic extension of work authorization for up to 240 days when an application to extend the EAD has been filed prior to its expiration. Note that this is not a new concept. USCIS currently allows this benefit when filing for an extension of nonimmigrant visa petitions, where the foreign national is able to continue working for 240 days, as long as the extension request was filed in a timely manner.

Issuing EADs valid for two years, rather than 1 year, in wider circumstances. Currently, a two-year EAD is issued only in a limited circumstance when the foreign national has filed the last stage of the green card application. The memo proposes to issue a two-year EAD in “wider circumstances,” which is not defined but most likely would apply to those nonimmigrants who are permitted to file for work authorization, such as dependent spouses of those holding L-1 or E-1 status.

Increasing job creation through the EB-5 Investor Immigrant Program by partnering with the U.S. Department of Commerce (DOC). The EB-5 Immigrant Investor Program provides permanent resident status to certain foreign nationals who have made investments in U.S. businesses ($500,000 or $1 million) and who create at least 10 jobs for U.S. workers, among other eligibility requirements. In the released memo, USCIS notes that the EB-5 program has been under-utilized. As a result, job creation under the program has been limited. USCIS views the EB-5 program as an important tool in assisting the U.S. economy. It proposes setting up a working group with the DOC to determine how the DOC can assist USCIS in making the EB-5 program more accessible to foreign investors through administrative efficiencies and promotion.

USCIS proposals that created the controversy

In the memorandum, the USCIS makes several proposals that would aid individuals who are unlawfully in the U.S. These controversial provisions include:

Allowing foreign nationals who entered illegally but who have Temporary Protective Status (TPS) to change or adjust status. TPS is granted by the government to people in the United States from a designated nation, even if they entered the U.S. illegally, when it is considered that those people cannot go home. The proposal would allow those people to change to a nonimmigrant visa status or adjust status to permanent resident. TPS was most recently granted to people from Haiti.

Expanding the use of Parole-in-Place (PIP). PIP is a method of letting individuals who were not lawfully admitted to the U.S. remain in the U.S. where the public benefit would be served. This provision could be used for “urgent humanitarian reasons” or “significant public interest.” PIP was recently applied to unlawful family members of people serving in the U.S. military and is proposed for other situations in which maintaining family unity is a concern.

Allowing applicants for adjustment of status to permanent resident status to travel abroad using Advance Parole (travel document). Under the current immigration law, the ability to file an application to adjust status to permanent resident status to someone who is not legal in the U.S. is very limited. If these applicants are granted a travel document and then leave the United States, they could be barred from re-entering the U.S. for either 3 or 10 years. The goal of this proposal is to allow foreign nationals, who are likely to get green cards, to travel abroad while their green card applications are pending using the advance parole documents that are routinely issued by USCIS.

Increasing use of Deferred Action (for those not eligible for PIP). Deferred Action is the government’s exercise of prosecutorial discretion not to pursue removal of an unlawful foreign national. This is perhaps the most controversial proposal because, in the broadest sense, Deferred Action could be applied to all people who are in the U.S. without authorization. However, the memo proposes to apply it in limited circumstances. Granting Deferred Action does not confer any immigration status but does allow individuals to obtain employment authorization. Deferred Action was granted to foreign nationals affected by Hurricane Katrina whose authorized U.S. visa status had expired.

Changing policy concerning when USCIS issues a Notice to Appear (NTA). A NTA is typically issued to start removal proceedings. It can be precipitated by someone who has been legal in the U.S. but whose application was recently denied by USCIS — such as a denial of an adjustment of status application. The memo contains a proposal to stop the practice of issuing an NTA. The memo suggests that the USCIS stop putting foreign nationals in removal proceedings when an application has been denied and that the USCIS should first weigh the likely impact on the applicant and focus on issuing NTAs to individuals who pose a danger to the community.

Keep this in mind: The USCIS memo was only a list of administrative proposals that could be used to solve some current immigration problems. It is not possible to say how many of these proposals are being considered, or will ever be implemented.

About Linda Rahal

Linda Rahal is an immigration attorney and the Chief Operating Officer of Trow & Rahal, which represents companies and individuals in navigating the immigration process for visas, green cards, citizenship, and other immigration-related matters. The firm also assists companies in preparing corporate immigration policies, conducting I-9 and compliance audits, and developing immigration-related strategies for owners and employees.

Linda received her JD degree, magna cum laude, from the American University, Washington College of Law in 1992; and earned her BA degree, cum laude, in International Relations from Tufts University in 1986. Linda has been a member of the American Immigration Lawyers Association (AILA) for over 10 years. She is also a member of District of Columbia and Maryland Bar Associations, as well as the American Bar Association.

Linda’s reputation within the legal community has led to selection by her peers for inclusion in several prestigious publications, including The Best Lawyers in America, the International Who’s Who of Business Immigration Lawyers, and the Martindale-Hubbell Bar Register of Preeminent Lawyers.