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Missing I-601 Waiver Reform Provisions

April 20, 2012

A Missed Opportunity For Meaningful Reform Of I-601 Family Unity Waivers

The proposed I-601 changes do not go far enough.

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In early January, when the administration announced plans to modify the unlawful presence waiver process, the dreams of many immigrants soared.

I was cautiously optimistic, having been through several ups and downs with the Obama administration on immigration reform.

I hoped the revisions would improve the chances of success for immigrants seeking permanent resident status.

But I was unwilling to be swayed by the outpouring of positive publicity until I read the fine print.

Upon studying the new I-601 regulations, my doubts were confirmed.

Even though the proposed adjustments will benefit some immigrant families, they could also lead to problems for others.

However, my disappointment with the Obama administration’s proposal runs deeper.

To put it bluntly, more is possible.

Unfulfilled Potential For I-601 Reforms

For a moment, let’s return to July 2010.

At that time, one of the topics trending in immigration circles was whether immigration reform could take place without the approval of Congress.

An internal government memorandum, Administrative Alternatives to Comprehensive Immigration Reform, was leaked and made public.

The memo, written by former USCIS attorney Roxana Bacon, quickly became an issue of intense public debate. Opponents claimed Obama was engaging in back door amnesty.

Not surprising.

After all, in the view of many hard core immigration reform opponents, all pro-immigrant measures constitute amnesty.

Absent locking the doors of entry to the U.S. and throwing away the keys, it’s unlikely any legislative proposal will ever win their approval.

Nor was it surprising, once the criticisms began, the administration rapidly retreated.

What I-601 Reform Alternatives Are Possible?

In a refreshing manner, the memo laid out three recommendations relevant to revising the I-601 waiver process in a meaningful manner:

  • Extend The Use Of Parole-In-Place
  • Amend Unlawful Presence Policies
  • Define Extreme Hardship Standards

Unfortunately, these suggestions are not part of the administration’s current I-601  proposal.

Extend The Use Of Parole-In-Place

About a month before the leaked memo, the government approved the use of Parole-In-Place (PIP) for military dependents.

Parole is a special permission given to immigrants, though deemed inadmissible, to enter the United States.  This authorization is granted for “urgent humanitarian reasons” or “significant public benefit.”

The parole-in-place provisions, on the other hand, allow immigrants, who are already on U.S. soil, but who entered without inspection, to be considered to have been paroled into the country.

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If granted parole-in-place, they can apply for a green card without having to return to their native country for their permanent resident interviews.

This enables them to avoid facing a difficult readmission process involving the filing of an I-601 hardship waiver abroad.

Under current policy, USCIS only grants parole-in-place status to undocumented spouses and immediate family members of persons actively serving in the armed forces.

The July 2010 memo recommended expanding parole-in-place to a wider class of permanent resident applicants.

For instance, DREAM Act beneficiaries, brought to the U.S. as young children, would seem to qualify under the “significant public benefit” provision.

Likewise, immigrants with sick, elderly, or disabled U.S. citizen or permanent resident family members should be eligible to receive parole-in-place benefits for “urgent humanitarian reasons.”

In my view as a green card and permanent residency attorney, parole-in-place is a natural fit with the provisional I-601 inadmissibility waiver process.

If immigrants are granted a provisional I-601 waiver while they are in the United States, why should they have to travel to their home country for consular processing to obtain a visa?

Rather, they could be allowed to petition for parole-in-place and, if granted, attend their green card interviews here.

Amend Unlawful Presence Policies

One alternative to the parole-in-place approach is to amend unlawful presence policies presently in effect.

Under current rules, an undocumented immigrant who departs the United States, after living here without permission, sets off the 3-year or 10-year re-entry bars.

This is true even if advance parole has been authorized.

By granting advance parole in this type of situation, Bacon stated, the government “deceives” immigrants into thinking it’s okay to leave the country and  “triggering their own inadmissibility.”

To address this issue, USCIS could modify unlawful presence regulations by a few simple definitional changes.

Re-interpreting the legal meanings of terms like “departure”, “admission”, and “entry” could help immigrants avoid triggering the bars when they leave the country with authorization.

These revisions would allow immigrants to return to their U.S. family once the permanent I-601 hardship waivers are granted without further legal obstacles.

The Board Of Immigration Appeals Speaks

As I was working on this post, the Board of Immigration Appeals addressed the same central point.

The Board, in Matter of Arrabally and Yerrabelly, noted “an undocumented alien’s departure under a grant of advance parole is qualitatively different from other departures, because it presupposes . . . he will be permitted to return to the United States.”

Thus, the BIA concluded, an alien who leaves the United States temporarily pursuant to a grant of advance parole does not make a “departure” from the United States.

As a Riverside immigration lawyer, I never anticipated the BIA, a body not known for being immigrant-friendly, would realize this distinction before the president.

Define Extreme Hardship Standards

Perhaps the most surprising aspect of Bacon’s memo was the call to develop a guide for assessing extreme hardship.

In her view, the current hardship formula used by immigration officials is “overly rigid” and “narrowly construed”.

Additionally, she noted, hardship standards often vary from office-to-office.

The combination of unfairly stiff adjudication and lack of procedural uniformity has created the need for a clear set of hardship regulations and evidentiary standards.

Even though this recommendation sounds far-fetched, it is possibly the easiest of the three ideas to implement.

The legal requirement of extreme hardship for granting waivers is set by Congress. The pertinent I-601 factors of extreme hardship and how they should be assessed are determined by the immigration bureaucracy.

And while perhaps the easiest suggestion to implement, its positive impact might be the greatest.

From Public Leaks To Watered-Down Solutions

For weeks after the memo’s release, I wondered who was responsible. The purpose was obvious.

Whether it was a Republican intervention tactic or a Democratic trail balloon, the goal was to incite the public’s reaction.

After it was leaked, the president insisted he did not have the executive authority to step over Congress.

He claimed the need for Republican dance partners and distanced himself from the memo’s recommendations.

Meanwhile, the administration embraced stiffer border enforcement measures and tougher deportation policies.

Now, just months from the presidential election, a few watered-down measures, like the provisional family unity I-601 waivers, have been brought forward.

This change in tactics, which may have been a deliberate delay planned as far back as July 2010, illustrates the importance of immigrant constituencies in the upcoming election.

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At recent campaign rallies, the president has re-asserted his commitment to immigration reform. If given four more years, he promises, fixes will be made.

For many immigration reform supporters, trusting such statements is the central political issue heading into the November elections.

If they had not complained as loudly during the past three years, would any changes have been made?

Shortly after resigning from USCIS, Bacon publicly stated the administration’s “acute” neglect on immigration stemmed from (1) lack of leadership, (2) indifference, (3) timidity, and (4) duplicity.

These shortcomings, she stressed, led to the widespread loss of confidence among immigrant supporters in the Obama administration.

When pro-reform voters go to the polls in November, they have to ask themselves what, if anything, has changed to regain their confidence for immigration reform.

If the administration had put some real teeth in the new inadmissibility waiver regulations, that question would be easier to answer.

Instead, the current I-601 proposal is another lost opportunity for meaningful immigration reform.

By ,Immigration Law, Policy, And Politics Blog

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