USCIS memo shows someone is trying to help.

Sunday, August 1st, 2010
By: Jonathan MontagJ.D.

An internal USCIS memo floats the idea of making some reforms at USCIS. I recall no other time when the immigration adjudications branch of the U.S. government has begun such a comprehensive analysis of its programs and policies. Some of what is contemplated is procedural in nature – such as reviewing all of USCIS’s policy memoranda to make sure they are internally coherent, publishing regulations to explain how certain laws should be implemented, and figuring out how to make certain programs, like the investor visa program, work better. There are also some more substantive policy suggestions, many surrounding one of the most Draconian of the laws passed in 1996, the 3 and 10 year bars.

These bars, found at INA § 212(a)(9)(b) [[8 USC § 1182(a)(9)(b)] state that if a foreigner is in the United States for more than 180 days “illegally” and then departs, he or she cannot come back for three years. If the alien is in the country for a year or more “illegally,” he or she cannot come back for ten years. Like the man who complained that his eye hurts when he drinks tea and the doctor advised, “Take the spoon out,” so in this case, the answer seems simple, “Don’t depart.” In some cases this is the best advice and the law works to prevent people from leaving the country. If I was in charge of writing an immigration bill and my goal was to have undocumented people leave the country, I would have the government hand out $100 savings bonds to people leaving and invite them to reapply when they are eligible to come back. I certainly would not make leaving the most unpalatable alternative available to them.

There is a reason that people leave other than to visit family and attend to emergencies abroad. People who enter the country illegally become eligible become permanent residents. This can occur through marrying a citizen or a citizen child turning 21, or through some other petition by a relative or an employer becoming current (they reach the front of the line on very long wait lists). One pre-requisite to obtaining permanent residence in the United States, called adjusting status, is that the person have been admitted or paroled into the United States. INA § 245(a) [8 USC § 1255(a)]. Except for those eligible through marriage to a U.S. citizen or those who have adult citizen sons or daughters, the person must also be in lawful status. If these pre-conditions do not apply the person cannot adjust status and instead must obtain the visa in a foreign consulate by departing and going to the consulate. Thus, the conundrum; to be able to become a permanent resident the person must leave the United States, but leaving triggers the 3 and 10 year bars.

There is a waiver to the 3 and 10 year bars found at INA § 212(d)(5)[8 USC § 1182(d)(5)]. It is available after departure if the applying foreigner can show extreme hardship to his U.S. citizen or lawful permanent resident parent or spouse. Note, extreme hardship to children is not an element of the waiver.

It is this conundrum the USCIS memo confronts. The specific concern is military families. The standard scenarios are that a U.S. citizen service member marries a foreign person who entered the country illegally. They have kids. To legalize the spouse, the spouse must leave. To come back, the spouse needs a waiver based on extreme hardship to the citizen service member (and not their children). Another scenario is a U.S. citizen service member who is over 21 has a single parent who entered without inspection. To legalize the parent, the parent must leave. However, because the parent has no qualifying relative – a parent or spouse who is a citizen or resident – the parent would not be able to come back for ten years.

USCIS proposed a solution in the memo (posted not on Wikileaks, but in the National Review). It would use its authority to parole the illegal entrant into the United States. Once paroled, the relative would be eligible to adjust status and would not need to depart. Another proposal is defining the extreme hardship standard loosely so that it would not be that difficult to get a waiver. Assume that the separation of spouses and families and the financial burden of supporting two households is extreme hardship, which an ordinary person might consider extreme hardship but the immigration law does not, then leaving and obtaining the waiver would not be so risky. Another policy is to just agree to leave the “illegal” spouse alone until such time as he or she can adjust status through changes in the law.

There are at least three three criticisms of these proposals. One group holds that the problems of military families are not unique to them and that if a formula for humane treatment should be afforded to all families, not just military ones. Another group holds that the law is the law and until Congress gets rid of the 3 and 10 year bars, USCIS should not use an authority to parole not meant for that purpose to circumvent the law. Instead USCIS should convince Congress to change the law. A third group is not shocked at all at how the 3 and 10 year bars work. Laws need to provide a disincentive to entering the United States or staying after the permitted stay expires. Weakening or eliminating the 3 and 10 year bars weakens that disincentive. If some people are harmed by it, well, you got to crack some eggs if you want to make omelettes.

In response to these criticisms, as for the first one, helping one group and not the many others that also need help, certainly helping a large and important one, is better than nothing. Also, incremental improvement in the law is better than nothing. As for the second criticism, Congress has failed to fix the law for the last 14 years and does not seem inclined to do it now. As for the third criticism, knowledge of the 3 and 10 year bars is so limited, the incentives to coming and staying in the United States so great, and the repercussions of illegal entry or overstay so great, that the bars do not serve their purpose and cause more harm than good.

It seems this memo is a USCIS trial balloon. USCIS wants to see how the public and the politicians react. It is important that those who favor the reforms speak out in their favor, because you can be sure that those opposed are making their opinions quite clear. Posted 08/01/2010.


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