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Thread: Article: Two Aces Up President Obama's Sleeve To Achieve Immigration Reform Without Congress - Not Counting Family Members And Parole In Place By Gary Endelman and Cyrus D. Mehta

  1. #1

    Article: Two Aces Up President Obama's Sleeve To Achieve Immigration Reform Without C

    Two Aces Up President Obama's Sleeve To Achieve Immigration Reform Without Congress - Not Counting Family Members And Parole In Place By Gary Endelman and Cyrus D. Mehta


    Nothing more poignantly describes the current
    humanitarian crisis at the Southwest border than a recent New
    York Times
    article describing the journey of Alejandro, 8, who came to the
    United States on his own with only his birth certificate looking for his
    parents who are somewhere in San Antonio or an aunt in Maryland. The story of
    an adorable, courageous and resourceful 8 year old braving a dangerous journey
    in search of his parents will pull at the heartstrings of any parent.

    There may be many reasons for this crisis and
    what may draw unaccompanied young children to the United States, but one reason
    for this is our broken immigration system. This system does not allow people
    accessible pathways to come to the United States legally or gain legal status.  Even those who are here as permanent residents
    or naturalized citizens have to wait years before their loved ones can join
    them due to the backlogs in our family and employment-based immigration
    preferences.  Until recently there was
    some hope that the House would pass its own version of immigration reform after
    the Senate passed S. 744 last year. Those hopes have now
    been dashed

    The impetus to preserve family unity is
    pervasive and exists across all cultures, and so is the deep love that parents
    have for their children and that children have for their parents. Many of the
    children fleeing violence in Central American countries are trying to unite
    with parents living in the United States. However, the broken immigration
    system does not allow families to unite through legal means Instead of beefing
    up the border with more enforcement; President Obama can bring some balance to
    the immigration system through bold administrative measures that will promote
    family unification in a legal and orderly manner. While there are several
    proposals on the table, one that resonates is to not count derivative family
    members in the employment and family preferences. The solution is simple but
    elegant: Count all members of a family together as one unit rather than as
    separate and distinct individuals. Do that and systemic visa retrogression,
    resulting in family members waiting endlessly, will quickly become a thing of
    the past.

    Counting Family Members

    203(d) of the Immigration and Nationality Act (INA) is the provision that deals
    with family members. Let us examine what section 203(d) says: “A spouse or
    child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101
    (b)(1) of this title shall, if not otherwise entitled to an immigrant status
    and the immediate issuance of a visa under subsection (a), (b), or (c) of this
    section, be entitled to the same status, and the same order of consideration
    provided in the respective subsection, if accompanying or following to join,
    the spouse or parent.” There is nothing in section 203(d) that explicitly
    provides authority for family members to be counted under the preference
    quotas. While a derivative is “entitled to the same status, and the same order
    of consideration” as the principal, nothing requires that family members also
    be given numbers. If Congress allocates a certain number of visas to immigrants
    with advanced degrees, it makes no sense if half or more are used up by family

    is no regulation in 8 Code of Federal Regulations (C.F.R.) instructing what section
    203(d) is supposed to be doing. Even the Department of State’s regulation at 22
    C.F.R. 42.32 only parrots section 203(d) and states that children and spouses
    are “entitled to the derivative status corresponding to the classification and
    priority date of the principal.” 22 C.F.R. 42.32 does not provide further
    amplification on the scope and purpose of section 203(d). We acknowledge that section
    203(d) derivatives are wholly within the preference system and bound by its
    limitations. They are not independent of numerical limits, only from direct
    limitations. It is the principal alien through whom they derive their claim who
    is counted and who has been counted. Hence, if no EB or FB numbers were
    available to the principal alien, the derivatives would not be able to
    immigrate either. If they were exempt altogether, this would not matter. There
    is a difference between not being counted at all, which we do not argue, and
    being counted as an integral family unit as opposed to individuals, which we do
    assert. We seek not an exemption from numerical limits but a different way
    of counting such limits. 

    If the Executive Branch wanted to reinterpret
    section 203(d), there is sufficient ambiguity in the provision for it do so
    without the need for Congress to sanction it. A government agency’s
    interpretation of an ambiguous statute is entitled to deference under Chevron
    U.S.A. Inc.
    v. Natural Resources Defense Council, Inc., 467 U.S. 837
    —often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the
    Supreme Court has made clear in National Cable & Telecommunications
    Assn. v. Brand X Internet Services
    , 545 U.S. 967 (2005)
    , the agency may
    reconsider its interpretation even after the courts have approved of it.  Brand X
     can be used as a force for good. For
    instance, in  Sciallaba v. Osorio: Does the Dark Cloud
    Have A Silver Lining
    , Cyrus  Mehta
    and David Isaacson propose that notwithstanding the Supreme Court’s recent
    decision concerning  section 203(h)(3) of
    the INA, where the Court agreed with the 
    Board of Immigration Appeal’s (BIA) more restrictive interpretation of
    this Child Status Protection Act provision in Matter of Wang,
    25 I&N Dec. 28 (BIA 2009)
    ,  the
    BIA has the power to reverse Matter of
    under Brand X. Matter of Wang held that not all
    children who are unable to protect their age under the Child Status Protection
    Act can claim the earlier priority date under which their parent immigration to
    the United States.

    the plurality opinion in Sciallaba v.
    explained in its conclusion:

    This is the kind of case Chevron was built for. 
    Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak
    clearly.  Confronted with a self-contradictory, ambiguous provision in a
    complex statutory scheme, the Board chose a textually reasonable construction
    consonant with its view of the purposes and policies underlying immigration
    law.  Were we to overturn the Board in that circumstance, we would assume
    as our own the responsible and expert agency’s role.  We decline that
    path, and defer to the Board.

    Kagan slip op. at 33.

    when a provision is ambiguous such as section 203(d), the government agency may
    reasonably interpret the provision in a reasonable manner. In our prior article
    relating to not counting relatives, Why
    We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs
    With A Stroke Of A Pen
    we discussed  that  there are admittedly some statutory
    provisions which might be read as pointing against an interpretation to not
    count family members. Most notably, it has also been pointed to us that  INA section 202(b) permits a spouse or child
    to “cross charge” to the foreign state of either of the parents or the spouse
    to avoid family separation, and this may suggest that derivatives must be
    individually counted for purposes of the per country cap. Still, this too can
    be interpreted differently under Chevron
    and Brand X, namely, that the entire
    family be counted as single unit to the other spouse or parent’s country. Of
    course, the statutory provision which militates in favor of such an
    interpretation is most notably the text of INA §203(d) itself. If this
    happened, the EB and FB preferences could instantly become “current.” The
    backlogs would disappear. The USCIS might even have to build a new Service

    of Parole in Place

    The very idea of “parole” in
    section 212(d)(5) of the INA is linked to allowing deserving aliens to come to the United States for “urgent
    humanitarian reasons or significant public benefit.” In most cases, we think
    this only applies to people who are not yet here. Not so. Digging a bit deeper
    into the INA, we find in section 235(a)(1) this golden nugget: an applicant for
    admission is “an alien present in the United states who has not been admitted…”
    Putting all of this together, there is nothing in law or logic that prevents
    the full embrace and unfettered application of parole to those already in the
    United States outside the color of law. The invocation of ‘parole in place” is
    another example of using new interpretive techniques to mine the existing law
    for greater benefits. It is the antidote to the inability of Congress to enact
    comprehensive immigration reform. There should be no concern over a possible
    infringement of separation of powers for the authority of Congress over the
    legislative process is being fully respected.

    Part of the responsibility of the President to enforce the laws is to
    adopt an understanding of them that best promotes what Congress had in mind
    when it passed the law in the first place. Parole in place does precisely that.
    This is not amnesty. The requirements for obtaining legal status on a permanent
    basis apply in full. It is merely an attempt to think of the law we have not
    purely or primarily as an instrument of enforcement but as a platform for
    remediation of the human condition. Indeed, is this not how law in the American
    tradition is meant to function?

    The creation of new solutions by
    federal agencies has become the norm rather than the exception in our system of
    governance if for no other reason that the sheer multiplicity of issues, as
    well as their dense complexity, defies traditional compromise or achievable
    consensus which are the hallmarks of Congressional deliberation. They require
    timely and directed executive action as a formula for keeping present problems
    from getting worse. This is exactly why Congress authorized the Attorney
    General to grant employment authorization without terms or limitations pursuant
    to INA 274A (h) (3)(B), a provision that should be linked with the robust
    exercise of the Executive’s parole power. The INA leaves the granting of parole
    completely up to the discretion of the Attorney General, now shifted to the
    DHS. It is hard to imagine a more open invitation to Executive rule- making to
    provide when parole can be extended, as there is absolutely nothing in the INA
    that would contradict a DHS regulation allowing parole in place. Not only is it
    appropriate for the DHS to formulate immigration policy on highly minute
    technical issues of surpassing moment such as parole in place, but the
    Constitution expects that to happen. Indeed, without this, who would do it? Far
    from crossing the line and infringing the authority of Congress, what we ask
    the DHS to do augments Congressional prerogative by providing a practical way
    for them to function.

    In addition to not counting derivatives, the
    Obama Administration can extend parole in place (PIP) that has been granted to
    military families to all immediate relatives of US citizens, which would allow
    them to adjust in the US rather than travel abroad and risk the 3 and 10 year
    bars of inadmissibility under sections 212(a)(9)(B)(i)(I) and (II) of the INA.
    Such administrative relief would be far less controversial than granting
    deferred action since immediate relatives of US citizens are anyway eligible
    for permanent residence. The only difference is that they could apply for their
    green cards in the US without needing to travel overseas and apply for waivers
    of the 3 and 10 year bars.

    The concept of PIP can be extended to other
    categories, such as beneficiaries of preference petitions, which the authors
    have explained in The
    Tyranny of Priority Dates
    . However, they need to have demonstrated lawful
    status as a condition for being able to adjust status under INA section
    245(c)(2) and the current memo
    granting PIP to military families states that “[p]arole does not erase any
    periods of unlawful status.” There is no reason why this policy cannot be
    reversed. The grant of PIP, especially to someone who arrived in the past
    without admission or parole, can retroactively give that person lawful status
    too, thus rendering him or her eligible to adjust status through the I-130
    petition as a preference beneficiary. The only place in INA section 245 where
    the applicant is required to have maintained lawful nonimmigrant status is
    under INA section 245(c)(7), which is limited to employment-based immigrants.
    Family-based immigrants are not so subject. For purposes of section 
    245(c) of the INA, current regulations already define “lawful immigration
    status” to include “parole status which has not expired, been revoked, or
    terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been
    admitted previously in a nonimmigrant visa status and is now out of status, the
    authors contend  that this person should be able to apply for a rescission
    of that admission and instead be granted retroactive PIP. Thus, beneficiaries
    of I-130 petitions, if granted retroactive PIP, ought to be able adjust their
    status in the US.

    There is also no reason why PIP cannot extend
    to beneficiaries of employment I-140 petitions. If this is done, would such
    persons be able to adjust status to lawful permanent resident without leaving
    the USA? In order to do that, they not only need to demonstrate lawful status,
    but also  to have maintained continuous lawful nonimmigrant status under
    INA section 245(c)(7), as noted above.  Is there a way around this
    problem? At first glance, we consider the possibility of using the exception
    under INA section 245(k) which allows for those who have not continuously
    maintained lawful nonimmigrant status to still take advantage of section 245
    adjustment if they can demonstrate that they have been in unlawful status for
    not more than 180 days since their last admission. We would do well to
    remember, however, that 245(k) only works if the alien is “present in the
    United States pursuant to a lawful admission.”  Is parole an admission?
    Not according to INA section 101(a)(13)(B). So, while retroactive PIP would
    help satisfy the 180 day requirement imposed by INA section 245(k)(2), it
    cannot substitute for the lawful admission demanded by section 245(k)(1). Even
    if an out of status or unlawfully present I-140 beneficiary who had previously
    been admitted now received nunc pro tunc parole, the parole would
    replace the prior lawful admission. Such a person would still not be eligible
    for INA section 245(k) benefits and, having failed to continuously maintain
    valid nonimmigrant status,  would remain unable to adjust due to the
    preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had
    entered EWI and subsequently received retroactive parole would likewise not be
    able to utilize 245(k) for precisely the same reason, the lack of a lawful
    admission. Still, the grant of retroactive PIP should wipe out unlawful
    presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive
    an immigrant visa at an overseas consular post without triggering the bars upon
    departure from the US. Thus, while the beneficiary of an employment-based
    petition may not be able to apply for adjustment of status, retroactive PIP
    would nevertheless be hugely beneficial because, assuming PIP is considered a
    lawful status, it will wipe out unlawful presence and will thus no longer
    trigger the bars upon the alien’s departure from the US.

    Our proposal to grant PIP retroactively so
    that it erases unlawful presence can also assist people who face the permanent
    bar under section 212(a)(9)(C) of the INA. If PIP can retroactively erase
    unlawful presence, then those who entered the country without inspection after
    accruing unlawful presence of more than 1 year will not trigger the bar under
    this provision if the unlawful presence has been erased.

    One of the biggest contributors to the
    buildup of the undocumented population in the US has been the 3 year, 10 year
    and permanent bars.  Even though people are beneficiaries of immigrant
    visa petitions, they do not wish to risk travelling abroad and facing the
    bars.  Extending PIP to people who are in
    any event in the pipeline for a green card would allow them adjust status in
    the US or process immigrant visas at consular posts, and become lawful
    permanent residents. These people are already eligible for permanent residence
    through approved I-130 and I-140 petitions, and PIP would only facilitate their
    ability to apply for permanent residence in the US, or in the case of I-140
    beneficiaries by travelling overseas for consular processing without incurring
    the 3 and 10 year bars. PIP would thus reduce the undocumented population in
    the US without creating new categories of relief, which Congress can and should
    do through reform immigration legislation.

    Something Close to Comprehensive Immigration Reform Without Congress

    Not counting family members and expanding
    parole in place can be a potent combination for nearing comprehensive
    immigration reform administratively in the face of Congressional inaction. The
    waits in the EB and FB preferences will disappear, and family members waiting
    abroad can unite with their loved ones more quickly and need not be forced to
    take the perilous path across the Southwest border in desperation. The
    expansion of PIP to beneficiaries of approved I-130 and I-140 petitions would
    allow them to obtain lawful permanent residence, rather than being stuck in
    permanent limbo due to the 3 and 10 year bars. After removing the obstacle of
    the bars, the grant of lawful permanent residence would be more rapid as there
    would be no backlogs in the FB and EB preferences, and loved ones from abroad
    can unite with newly minted immigrants in the United States through an orderly
    and legal process.

    Our proposals fall squarely within the mainstream of the American political
    tradition, animated by the spirit of audacious incrementalism that has
    consistently characterized successful reform initiatives. We acknowledge that immigration
    reform passed by Congress would solve more problems in a fundamental way. We
    seek less dramatic but no less meaningful advances through the disciplined
    invocation of executive initiative only because these are the ones that can be
    achieved sooner and with greater predictability. Our justifiable zeal for immigration
    reform must not blind us to the benefit of more moderate proposals. We are
    confident that future progress will follow in a way that minimizes disruption
    and maximizes acceptance. We hold fast to the distinction between prudence and
    absolutism, between incremental reform and revolutionary upheaval. In the long
    run, the American experience has been characterized more by the former than the
    latter and it has led to a fruitful stability that has been the envy of the

    This article was originally published on on June 29, 2014. Reprinted with permission.

    About The Author

    Gary EndelmanGary Endelman is the Senior Counsel at FosterQuan, LLP in Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan, LLP.

    Cyrus D. MehtaCyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.

    The opinions expressed in this article do not necessarily reflect the opinion of

  2. #2

    Two Aces up Presidents Obama's Sleeve to Achieve CIR without Congress

    Amazing article. There are so many things in it that I did not know or thought of. I am really appreciative for the time taken to go over the details of the laws.
    Now, how to we get this article into the hands of POTUS?

  3. #3
    POTUS isn't interested in anything that does not stir controversy.

    I have a couple of other novel ideas -- cool it on the 601a waiver rfes and denials; lighten up on the current strict interpretation of CSPA, or of the def of a 245i grandfathered alien.

    Never mind. A waste of breath. See my opening sentence. These ideas are too "under the radar". Not enough controversy.

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