14 Changes Obama Can Make to "Fix" The Broken Immigration System Now.

A group of immigration attorneys and others interested in immigration have been brainstorming about what President Obama could do to "fix" some of the problems in our broken immigration system. These are some of the smartest, most forward thinking individuals I know in the area of immigration law. Their ideas are specific, detailed, and easy to implement These ideas involve mostly policy change, not a lengthy regulatory fix.  

The nightmare scenario for many immigrants dealing with our current immigration system is not always caused by the laws enacted by Congress (some are),  Rather, these are problems either created by current administration policy, or by policies adopted by prior administrations. The President can change no laws. But, he can change regulations and policies.  And, while our laws are indeed "broken" in many ways, the regulations and policies themselves are the source of many of the issues current plaguing our legal immigration system, and straining our resources as we combat undocumented immigration and deal with a non-functioning legal immigration system.

President Obama can do a LOT to change, modify, and update these regulations and policies. My good friends Cyrus Mehta and Gary Endelman have published a blog talking about two of these fixes, Parole in Place and the counting of immigrant visa numbers. I commend you to read their brilliant narrative.  CNN even got in the act, publishing an article about five things Obama could do through policy and regulatory change.

But, let's not limit Obama to only two or five changes. There are at least 14 things Obama could do that would resolve a lot of immigration challenges, ranging from business immigration visas, deportation backlogs and family immigration, and priority for removal of undocumented immigrants.  The saying is "go big, or go home."  So, what will Obama do?  To day he has shown a proclivity for two dimensional thinking (shout out to you Wrath of Khan fans out there). 

Can he be convinced to be bold?  I am not holding out hope.  But, so that you know.  If there are things on this following list that he does not do, it is not because he does not have the authority. It is because he is not really sincere about fixing the broken immigration system.  

Fixes for those who are eligible for a visa, but for being subject to the bars upon departure

• “Parole-in-Place” for immediate relatives of USC who are beneficiaries of approved visa petitions.  There is precedent for this remedy as the administration already uses parole-in-place for Cuban entrants and family members of former and current US military personnel.  Section 212(d)(5) of the INA provides the Attorney General (now DHS), the authority to parole into the U.S. temporarily under such conditions as he may prescribe on a case-by case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the U.S.  Section 235(a)(1) of the INA sets out that aliens present in the U.S. who have not been admitted are treated as applicants for admission to the U.S.  Thus, these aliens can lawfully be paroled.

• The administration can deem extreme hardship as in special rule cancellation (there is historical precedent for this in special rule cancellation for NACARA). In order to be eligible for a waiver of the unlawful presence bars under § 212(a)(9) of the INA, a foreign national subject to those bars must demonstrate that a qualifying relative will suffer extreme hardship if he/she is not allowed to return to the U.S. This same requirement existed under the former § 244(a) of the INA (suspension of deportation).  In order to facilitate the adjudication of suspension applications in the past under NACARA, the administration, at the time, deemed the existence of extreme hardship for those with qualifying relatives. See Limited Presumption of Extreme Hardship under Section 203 of NACARA, HQCOU 90/16.11-C, Feb. 12, 1999, by Paul Virtue. There are times that the administration has elevated the hardship requirement for a waiver. For example, though the statute requires a foreign national to demonstrate extreme hardship when applying for a waiver under § 212(h) of the INA when convicted of certain criminal acts, the administration elevated the requirement to exceptional and extremely unusual hardship for those convicted of violent or dangerous crimes. Under 8 C.F.R. § 1212.7(d), the Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that a denial of the waiver would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under INA § 212(h). 8 C.F.R. § 1212.7(d). Matter of Jean, 23 I&N Dec. 373, 383 (BIA 2002).

•  The administration can enable those granted TPS to adjust status to lawful residence if otherwise qualified through an approved visa petition.  See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). Currently, but for those living within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit, the administration will not allow a foreign national granted TPS to adjust status, finding that TPS is not a lawful status from which one can adjust status. The 6th Circuit, in sound reasoning, found that TPS is a lawful status from which foreign nationals can adjust status. This decision should be adopted nationally.

• The administration can expand the 601A waiver process stateside to all foreign nationals who are the beneficiaries of approved visa petitions. This administration currently allows beneficiaries of approved immediate relative petitions, who require unlawful presence waivers, to apply for those waivers while physically present in the U.S.  Foreign nationals who are not the beneficiaries of immediate relative petitions, but who nonetheless qualify for residence and who are eligible for waivers have to apply for waivers after being denied visas abroad. These waivers take many months to adjudicate. Fearful of not being granted the waivers, these foreign nationals do not proceed abroad, even though many of these waivers would be favorably adjudicated. By moving the entire process stateside, many more foreign nationals would pursue the currently available immigrant visa process. 

• The administration could also include the ability to process waivers of deportation (I-212), or other waivers, along with unlawful presence waivers while the applicants are in the US.  As many aliens subject the unlawful presence bar also require deportation waivers or other waivers, they are not eligible to take advantage of the I-601A waiver process, which has effectively rendered the existing policy useless for a large segment of the immigrant population.

• The administration can relax interpretations of those deemed unlawfully present under § 212(a)(9) of the INA.  The administration has never enacted any regulations on unlawful presence. A foreign national who is in a period of stay authorized by the Attorney General is not unlawfully present. The administration has latitude in determining what foreign nationals are present in a period of stay authorized by the Attorney General.   Moreover, section 212(a)(9)(B)(iii) of the INA provides exceptions for period for unlawful presence, i.e., for minors, those that have filed for asylum etc.  Section 212(a)(9)(B)(iv) provides for tolling of unlawful presence. These exceptions and tolling have only been applied to the 10 year bar to admissibility. The administration can apply these to all periods of unlawful presence, including the permanent bar to admission under § 212(a)(9)(c).

• Section 245(i) of the INA provides that certain foreign nationals and their spouses and children who commenced the residence process on or before April 30, 2001 and were physically present on December 20, 2000 can seek residence in the U.S. upon payment of a fine of $1000, if otherwise eligible for residence.  At one time, the administration interpreted the relatives covered by section 245(i) broadly (i.e. as covering after-acquired spouses). More recently, the Board of Immigration Appeals found that after -acquired spouses of beneficiaries covered by §245(i) would not benefit from this provisions. This is a reversal in policy.  National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005), allows the administration to rethink prior interpretations of law. The administration should use the Brand X decision to broaden its interpretation of 245(i).

• The administration can use greater prosecutorial discretion (stop trying to deport immediate relatives). The administration should formalize a policy of not putting certain foreign nationals in removal proceedings and target border enforcement.

• No child under 16 should be charged with entry without inspection (“EWI”) because EWI requires the actual evasion of inspection coupled with the intent to evade inspection (the intent to evade inspection requires a level of sophistication that most children do not have- this is clearly legally provided for) Matter of Pierre, I.D. 2238 (BIA 1973).

Lower the cost of detention without compromising security

•      The administration spends tens of millions or more each year to detain foreign nationals. Foreign nationals convicted of certain criminal offenses, including lawful permanent residents convicted of possession with intent to distribute a small amount of marijuana, are subject to mandatory custody. See § 236(c) of the INA. This is true even though the foreign national may pose no security or flight risk and may not have served any time in criminal custody. The administration can save millions of dollars by finding that electronic surveillance satisfies the statutory requirement of mandatory custody. This will require no change in the law and assure that the foreign national will be present at future immigration hearings.

Administrative Fixes for lack of family and employment immigrant visas

•        There is no legal support in the Immigration Act for charging worldwide visa quotas against all immigrating family members, as opposed to the legally support use of  one (1) visa as per family unit.  This would essentially solve most family and employment quota backlogs.

Allow U.S. companies to attract global talent and compete with E and L companies and deal with severe H-1B shortage

•        The administration can grant employment authorization for spouses of foreign nationals allowed to work in the U.S. on H1B, TN, E3 and H1B1, O and P visas. This will lessen the demand on the H1B professional visa.  The demand is so great for the H-1B professional visa that the visas are exhausted the first day they are available. In fact, this year, a foreign national applicant for an H-1B visa, with a U.S. bachelor’s degree, had about a 43% chance of getting selected for the H-1B. The administration has already granted work permission to spouses of L and E visa holders. It is a logical extension for the administration to extend work permission to spouses of other visas.
•        The administration can grant longer periods of optional practical training for students. The administration already extended the practical training granted to STEM majors in U.S. universities from 12 months to 29 months, as long as the STEM’s employer participates in E-verify. Why not extend this to all foreign graduates of U.S. universities? This would help alleviate the H-1B crisis and encourage more employers to use E-verify.
•        The administration can go back to less restrictive interpretations on those not subject to H-1B quotas, i.e., those employed at institutions affiliated with qualified institutions of higher education or non-profit research institutions are exempt from the H-1B cap.  Prior administrations more liberally interpreted exemptions from the H-1B cap allowing institutions that had any type of affiliation with a qualifying organization to qualify for the exemption. This administration has interpreted the H-1B exemption more stringently; i.e., public schools that served as training grounds for student teachers having affiliation agreements with qualifying universities used to be able to claim H-1B cap exemption and now cannot. With the H-1B demand so high, and the cap so low, why not interpret these exemptions broadly?

Use the Brand X decision to overturn Judicial decisions that do not support the administration’s goals  National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005).  

•  The Brand X decision allows the administration to rethink its interpretation of prior statutory provisions. In some recent cases, Courts actually encouraged the administration to re-think interpretations of the law. See recent Supreme Court decision in Scialabba v. Vuellar de Osario.