For some time now, the Immigration Service has been studying possible ways to meaningfully reform the current immigration process by administrative action IF Congress does not act on Comprehensive Immigration Reform. An internal memorandum by CIS Director Alejandro Mayorkas has recently surfaced which details a number of actions with the Executive Branch has identified as options it has the authority to enact. The stated purpose of these measures is to promote family unity, foster economic growth, achieve significant “process” improvements, and remove the threat of removal for certain individuals present in the U.S. without authorization.

Caution: none of these measures have been enacted thus far, and there is no guarantee that any or all of them will be. However, individuals who could be impacted by these changes ought to seriously consider the possibilities and plan accordingly.

Following is a brief summary of these interesting proposals:

TPS: Allowing aliens who entered the U.S. without inspection who were previously granted Temporary Protected Status to adjust or change status in the U.S.

Parole-in-Place: this is essentially an action to provide other individuals (not TPS applicants) who entered the U.S. without inspection (EWI) the legal basis to adjust status in the U.S. For example, an EWI who is married to a U.S. citizen is currently unable to adjust status in the U.S. and can only obtain his/her green card by travelling to the U.S. Consulate in their home country; this would no longer be necessary and would be a huge benefit to these applicants. Unlawful Presence: aliens who were unlawfully present in the U.S. and who departed with an Advance Parole document issued by CIS would no longer be considered subject to the 3/10 year bar.

Unlawful Presence: aliens who were unlawfully present in the U.S. and who departed with an Advance Parole document issued by CIS would no longer be considered subject to the 3/10 year bar.

Extreme Hardship: the standard for establishing extreme hardship to family members in order to qualify for certain waivers of admissibility would be modified to be less rigid (it is currently a very onerous standard to meet).

Minors: relief would be made available for certain minors in foster care or in the process of being adopted.

EB-5 Immigrant Investors: CIS would work with the Department of Commerce to make the program more user-friendly.

Dual Intent: greatly expand the doctrine, currently limited to H and L visa holders, to enable other long term visa holders (F, O, TN, P and E) to apply for a green card without jeopardizing their nonimmigrant status.

Grace Periods: extend the period a time a nonimmigrant can remain in the U.S. following the expiration of their temporary work authorization to arrange their affairs before leaving.

Grace Periods: extend the period a time a nonimmigrant can remain in the U.S. following the expiration of their temporary work authorization to arrange their affairs before leaving.

Premium Processing: expand its availability to other employment-based applications and petitions (note: the current fee for Premium Processing is $1,000; this move would generate substantial new revenue for CIS).

H-2Cap Allocation: modify the current arrangement for distributing the annual allocation of numbers for temporary, seasonal workers.

EAD’s: provide for the automatic extension of work authorization while an application for a new EAD is pending. Issue EAD’s in 2 year increments in a wider variety of situations.

Civil Surgeons: reengineer the process for designation of civil surgeons performing medical examinations of Adjustment of Status applicants.

Internal Policy Review: streamline the issuance of policy memos, guidance, etc. to promote uniformity and transparency.

Deferred Action: exercise prosecutorial discretion more generously to limit the removal of aliens who are otherwise ineligible for benefits to promote family unity and provide humanitarian relief in meritorious cases.

Deportation: use discretion more liberally and refrain from initiating deportation proceedings in routine cases, in order to focus resources on aliens who pose a danger to the community.

As always, please feel free to contact us if you have any questions about these or any other immigration matters.