08/02/2010
A DREAM ACT COME TRUE?
Well, not exactly...but, the United States government is showing willingness to work toward reforming the immigration system even without the much talked about Comprehensive Immigration Reform. The idea being to make administrative changes to the system already in place.
A recently released memo prepared for the head of the U.S. Citizenship & Immigration Service gives new hope to hundreds of thousands of immigrants who are in the U.S. without proper authorization to live or work here. The memo was prepared for the purpose of outlining administrative options to "promote family unity, foster economic growth and ... reduce the threat of removal for certain individuals present in the United States without authorization."
For immigrants in the South Florida area, the provisions of the memo relating to TPS (Temporary Protected Status) are most promising. Essentially, TPS holders who entered the US without inspection might have an opportunity to adjust their status and obtain permanent residency. Currently the law does not allow those who have entered without being inspected by an immigration officer to adjust their status, even in cases of marriage to a U.S. Citizen.
For those who are not TPS holders and who face the problem of being EWI, USCIS could grant what is known as "Parole in Place" or PIP, thus effectively "admitting" these individuals into the United States and giving them a basis for adjustment of their status.
The memo touches upon issues concerning both individuals and those in business. For individuals, there are the suggested changes to TPS and PIP as outlined above. Changes to the Unlawful presence policy for those applying for Adjustment of Status who might incur the 3 or 10 year bar should they choose to use the advance parole document issued as part of their adjustment packet are also under consideration. As well as lessening of the standard for demonstrating "extreme hardship" to a US Citizen which is necessary to overcome the 3 and 10 year bars. There is also the increased use of deferred action in removal cases and "holding off" on issuing Notices to Appear (NTA's) which are the charging documents that are issued to begin a removal/deportation case.
In terms of business immigration, the Memo suggests reform in the area of EB-5 visas in order to promote greater economic growth; expansion of the dual intent doctrine which currently allows only H and L visa holders to maintain their non-immigrant status while their adjustment applications are pending; allowing H-4 dependents of H-1B principals to obtain employment authorization documents and expansion of the H-2B cap for temporary workers.
The memo also touches upon the DREAM Act itself. The DREAM Act, a bi-partisan Act which has already narrowly been defeated once, may come to the forefront yet again. The DREAM Act would in effect allow those who entered the U.S. as minors a path to a green card through either service in the U.S. military or attendance at a qualified University.
The DREAM Act like Comprehensive Immigration Reform will require a vote by Congress and the President's signature. The changes outlined in the recent USCIS memo will require only administrative changes and thus might be more easily accomplished.
While the memo offers no guarantee of change, but merely suggestions for what might be changed, it is a step in the right direction. Perhaps the long broken system of immigration can finally begin to be fixed. One can "dream" can't they?
By: Sheri A. Benchetrit ( sbenchetrit@stoklaw.com)
(Please note: This article does not constitute legal advice or the formation of an attorney-client relationship; however, please feel free to contact the offices of Stok Folk + Kon, P.A. with any of your questions or concerns).
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