It’s post-election time. Do you know what that means? It’s time for some broad administrative action on immigration! No more broken promises. The more than decade-long delay in passing comprehensive immigration reform into law has had a significant and damaging toll on families, businesses, communities and the United States economy. With the House of Representatives showing no will to pass a bill, thus far, some broad-based action on immigration is long overdue. Every day that this action is delayed approximately one-thousand undocumented immigrants are deported and separated from their families. While we have been sharing recommendations with the Administration throughout the summer and fall, we wanted to take some time over the next couple of weeks to share a series of blog posts – in layman’s terms rather than “lawyerese” – explaining why our broken immigration system would benefit from an administrative overhaul.
The first wish relates to families and the devastating and life-altering impact that our current immigration policies have on millions of individuals. Deferred Action for Childhood Arrivals (DACA) has had a profound impact on the lives of individuals who came to the United States as minors and have grown up here. It has allowed them to receive work authorization, in most states a driver’s license, and in some state’s even in-state tuition for public colleges and universities. It has allowed the Department of Homeland Security (DHS) to identify those DACA-eligible persons who are present in the United States and conduct background checks. Ultimately, it has had a positive effect on the morale of these individuals and an economic benefit in that they are now able to legally work with a social security number and pay their fair share of taxes.
Deferred action should now be expanded to include many more individuals including:
- Parents of U.S. citizens;
- Parents of DACA-eligible individuals; and
- Individuals who have resided in the United States for three years or more.
These individuals should be permitted to file, with a fee, for work authorization and advance parole. Advance parole should be permitted without requiring the applicant to prove emergent circumstances. The ability to use advance parole would be critical for those individuals who have family emergencies abroad, especially those with parents or grandparents with serious medical conditions. One of the most heartbreaking things that we, as attorneys, must often tell individuals is that they cannot go visit a dying family member because if they go they will face a 10-year bar (or longer) to re-enter the United States. Most importantly, the ability to apply for Deferred Action will halt the deportations of individuals that we should not be removing from the United States and separating from their families and communities.
The immigration system is extremely unforgiving. One mistake or lapse in judgment by a prospective applicant for permanent residency can wind up being a permanent blemish and potential denial from receiving immigration benefits. The current immigration law allows for waivers of an individual’s ground of inadmissibility if they can prove “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent. “Extreme hardship” has consistently been narrowly construed by the government and it is not that simple to get a waiver in many cases. Furthermore, a U.S. citizen or lawful permanent resident child is not contemplated in the waiver process under the current law.
In this context, we would hope to see the U.S. Citizenship & Immigration Service (USCIS) issue new guidance that implements a more expansive interpretation of “extreme hardship” including a presumption of extreme hardship for certain groups of individuals. This guidance should set forth a more generous evidentiary standard that highlights the need to keep families united. A waiver should not necessarily require that a spouse or parent be extremely ill, disabled or dying to get a waiver, the law should be more forgiving. Furthermore, USCIS should also create a presumption of extreme hardship for individuals with certain equities. For example, a married couple where the spouse is a U.S. citizen or lawful permanent resident and they have been married for a minimum period of time (i.e., 3 years) or have at least one U.S. citizen child. In cases such as those, there should not be a need to file a separate waiver application.
These two proposed administrative fixes are just the tip of the iceberg. More wishes are on their way, so stay tuned…
Written by Maurice Goldman, Chair, AILA Media Advocacy Committee