While Congress Debates Immigration Reform There Remains Two Recent Policy Implementations Which Allow Certain Unauthorized Aliens to Receive Benefits.

By Matthew Kriezelman

(The original version of this article appeared in the June 2012 issue of the Lake County Docket, the official journal of the Lake County Bar Association)

The Department of Homeland Security estimates that there are currently around 11 million unauthorized aliens currently in the United States.  For the past decade the United States Congress has debated ways in which to resolve the unauthorized Immigration situation in this country.  On January 28, 2013, a bipartisan group of 8 Senators released a framework for Immigration Reform which they hope to pass Congress this year.  The next day, President Obama gave his own speech presenting his vision as to what any Immigration Reform should encompass. Most recently, the Senate passed a comprehensive immigration reform (CIR) bill (S.B. 744) that includes a legalization program. Nevertheless, it is unclear what shape a final bill on Immigration Reform would take as the House continues this debate.

Only Congress has the ability under the Constitution to regulate Immigration in the United States.  U.S. Const. art. I, § 8, cl. 2.  However, Congress has delegated the President certain powers in enforcing the Federal Immigration laws when enacting Immigration regulations.  Thus, while waiting for Congress to act, the President has authority to enforce and interpret the immigration laws. Last year, President Obama made two major policy decisions using his executive discretion in enforcing and interpreting Immigration laws in the United States.  He announced Deferred Action for Childhood Arrivals(DACA) as well as provisional processing for certain inadmissibility waivers.

Under DACA, the President, through the Secretary of Homeland Security, used his powers to defer the removal of certain people in the United States without legal immigration status.  The requirements for DACA relief are the following:

1. Under the age of 31 as of June 15, 2012;
2. Entered United States prior to their 16^th birthday;
3. Continuously resided in the United States since June 15, 2007, up to the present time;
4. Were present in the United States on June 15, 2012 and at the time of making the request;
5. Entered without inspection before June 15, 2012 or were unlawfully present in the United States on that date;
6. Are currently in school, has graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors.

Consideration of Deferred Action for Childhood Arrivals, Form I– 821D, New Information Collection;

Emergency Submission to the Office of Management and Budget; Comment Request, 77 FR 49451 (Aug. 16, 2012).  United States Citizenship and Immigration Services(USCIS) has since announced rules at to what is to be deemed a felony, significant misdemeanor or other misdemeanors.  This is especially confusing since Immigration law considers some misdemeanor offenses to actually be “aggravated felonies”.  USCIS has released “FAQs” on their website, briefly stating the types of convictions which may be classified as felonies and significant misdemeanors.  (See http://www.uscis.gov/).  Additionally, USCIS has announced that a person may meet the high school requirement if they are currently enrolled in a GED course.  There also remain specific requirements as to whether a person has maintained continuous residence in the United States.

A person who is granted DACA relief is provided with an employment authorization document(EAD) as well as a receipt noting their status.  USCIS is currently granting DACA relief for two years.  Presumably after that time a person would be able to renew their status.  An EAD will allow a person to apply for a social security number as well as allow them to work legally in the United States.  This leads to a number of state and federal benefits such as being able to obtain a regular drivers license.  There is also the possibility of obtaining a travel permit which would allow someone to leave the country with the authorization to return.

While DACA relief is beneficial to those that can apply for it, it does not lead to any permanent immigration status.  Additionally, a great majority of those here illegally are unable to apply for DACA.  Therefore, it does not exist as a permanent solution but merely as a stopgap measure to help some of those here.

In another stopgap measure intended to reduce the number of immigrants without status in the United States, on January 3, 2013, the Department of Homeland Security published a final rule implementing the provisional waiver program for those who qualify.  Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 536 (Jan. 3, 2013).  This rule allows a person to apply for a waiver of their unlawful presence before they return to their country of origin.

Generally, if a person originally entered the United States without a visa or entered with a visa but fell out of status, they must obtain an immigrant visa at the United States consulate in their country of origin before they return to the country as a Lawful Permanent Resident (LPR).  A person who is classified as an immediate relative, meaning that they are the spouse, parent or child under 21 of a US citizen, may be out of status but still must show that they originally entered with a visa in order to obtain LPR status.  Under most circumstances, when a person exits the United States after residing here for over a year without status, a ten year bar from returning takes effect.  A person may waive that bar only through a showing that their US Citizen or LPR spouse or parent would suffer an extreme hardship if they were not allowed to return.  If the waiver is not granted their immigrant visa is denied and they must wait outside the country for ten years before they become eligible to return.  This ten year bar often discourages people from leaving the country to pursue their immigrant visa as there is no guarantee that it will be granted.  They must leave the country first in order to apply for the waiver so they are taking a risk that it may not be granted and possibly suffer the consequences of being separated from their family for ten years.  Since the ten year bar does not yet apply to people who have not yet left the country, USCIS has long taken the position that a person could not apply for it until they first leave and the bar becomes effective.  Under the current system, it is possible that person may be out of the country for over a year waiting for even a successful waiver application to be approved.

The new provisional waiver program allows a person to be provisionally approved for the waiver prior to leaving the country.  It contains a number of restrictions as to who can apply for it.  Only a person who remains inadmissible solely for their unlawful presence can apply for the provisional waiver.  Therefore, if a person requires additional waivers for any criminal or fraud issues they would not be eligible.  Additionally, a person with a prior removal order would not be eligible for the provisional waiver.  Finally, the waiver is only available to people who have a United States Citizen spouse or parent.  The regulations allow a person to apply for the provisional waiver prior to leaving the United States in order to receive their immigrant visa abroad.  Once the provisional waiver is approved, the person would leave the country in order to attend their consular interview.  At that consular interview they will not have their unlawful presence waiver readjudicated and will be granted their immigrant visa to enter the United States as a Lawaful Permanent Resident by the United States Consulate.

Although both of these discretionary measures introduced by President Obama allow some unauthorized people to obtain benefits in the United States, the vast majority cannot take advantage of these new provisions.  It remains to be seen what type of final immigration reform Congress will pass after the current debate.