PLEASE HELP ME: I HAVE JUST FOUND OUT THAT MY I-94 HAS EXPIRED!

By Cora-Ann V. Pestaina

Mark Thomas (not the actual name of any client, of course) is suddenly living a nightmare. He has just discovered that he has remained in the U.S. well after the expiration date of the Form I-94 issued to him the last time he entered the U.S. in H-1B status. His employer has informed him that he might be out of status and he wants to terminate his employment because he thinks Mark is no longer eligible to work in the U.S. Mark’s first desperate instinct is to get on the next international flight to anywhere and then re-enter the U.S. to receive a new I-94. However, his attorney advises him that this is too risky and warns Mark - leave and he could be barred from re-entering the U.S. for years! Mark Thomas feels hopelessly stuck.

Every foreign national who has visited the U.S. whether for business or pleasure, is familiar with the all-important Form I-94. The I-94 is the Department of Homeland Security’s (DHS) Arrival/Departure record. Customs and Border Protection (CBP) issues the I-94 to document a foreign national’s admission into the U.S.  whether the individual is admitted as a nonimmigrant or is the process of adjusting status in the U.S.   U.S. Citizenship and Immigration Services (USCIS) also issue the I-94 to foreign nationals who are extending their nonimmigrant status or changing from one nonimmigrant status to another in the U.S. This I-94 appears at the bottom of USCIS’ Form I-797A, Approval Notice indicating USCIS’ approval of the petition or application to extend or change the foreign national’s nonimmigrant status in the U.S.

Previously, whenever a nonimmigrant arrived in the U.S. by air or sea, he or she usually filled out a white arrival/departure record – the I‑94 (or green I-94W for foreign nationals entering on a visa waiver) - and presented it to the port’s CBP officer. The officer would then tear off the bottom portion of the form and stamp it to indicate the alien’s nonimmigrant status (i.e. B-2, L-1A, H-1B, etc.) and the expiration date of the alien’s authorized period of stay.  The I-94 was then stapled to a page of the alien’s passport, and upon departure, the alien had to turn in the I-94 at the port of departure as a record of timely departure. 

CBP has now automated the I-94 process for all foreign nationals applying for admission at U.S. ports of entry. Air and sea travelers no longer need to complete the paper I-94 (or I-94W). CBP will still issue a paper I-94 at land border ports of entry and also to certain classes of aliens such as refugees and at other times CBP deems the paper I-94 to be appropriate. When issuing the electronic I-94, the CBP officer will stamp the foreign national’s passport with an admission stamp that indicates the class of admission; the date of admission and the admitted until date. Now, foreign nationals who need to present their I-94s as proof of their lawful status to employers, schools/universities or government agencies can access their CBP arrival/departure record information online at www.cbp.gov/I94. 

Remaining in the U.S. beyond the period of authorized stay as granted on the I-94 may cause the foreign national to be out of status and unlawfully present in the U.S. Staying beyond the period authorized is a violation of U.S. immigration laws and may result in the foreign national being barred from reentering the U.S. in the future. More specifically, remaining in the U.S. for more than 180 days beyond the I-94 expiration date could cause the foreign national to be barred from reentering the U.S. for a period of three years and staying for more than one year beyond the I-94 expiration date could cause the foreign national to be barred from reentering the U.S. for a period of 10 years.

Unfortunately, many foreign nationals remain unaware of the importance of the I-94. Oftentimes, foreign nationals are confused as to which document governs their stay in the U.S. There could be one expiration date on the nonimmigrant visa stamped in their passport; another expiration date on the I-94 issued on Form I-797 by USCIS and yet another expiration date on the I-94 issued by CBP upon their last entry into the U.S. In some cases, foreign nationals and their employers can neglect to note the I-94’s expiration date and the foreign national could inadvertently remain in the U.S. well beyond the authorized period of stay possibly in violation of U.S. immigration laws. This is exactly what happened to Mark Thomas.

Mark is a national of Bermuda, who resides in Chicago, Illinois. Mark last entered the U.S. through Newark Airport in New Jersey on August 15, 2012 and presented his H-1B visa stamp valid until September 30, 2012 and his Form I-797, H-1B Approval Notice issued by USCIS indicating that his H-1B status in the U.S. had last been extended from January 1, 2012 until March 10, 2014. The Form I-797 bore an I-94 card on the bottom indicating an expiration date of March 10, 2014. At the airport, the CBP officer issued Mark an I-94 valid only until February 15, 2013, the same expiration date as Mark’s passport. 

Under 8 CFR 214.1(a)(3)(i), any foreign national who applies for admission to the U.S. must present a valid passport and valid nonimmigrant visa unless either or both documents have been waived. The foreign national’s passport must be valid for a minimum of six months from the expiration date of the contemplated period of stay.  While the regulation requires the presentation of a passport with such validity dates, there is nothing mandating the DHS to grant the I-94 till the expiration date of the passport. Some countries have agreements with the U.S. whereby their passports are recognized as valid for return to the country concerned for a period of six months beyond the expiration date specified in the passport. The effect of these agreements is to extend the period of validity of the passport for six months beyond the expiration date appearing on the face of the document. The issue is discussed at 9 FAM 41.104 N2. The list of countries that extend passport validity for an additional six months after expiration is at 9 FAM 41.104 Exhibit I.

Mark presented CBP with a passport valid for at least six months but not valid for the full H-1B validity period indicated on the Form I-797A, Approval Notice. As a national of Bermuda, Mark’s passport ought to have been considered valid until August 15, 2013, six months beyond the expiration date listed in his passport. CBP issued Mark an I-94 with the same expiration date as the expiration date listed in his passport because, although the regulations do not mandate this, DHS appears to interpret “contemplated period of stay” in the regulation to correspond to the duration of the admission on the I-94. It appears that DHS does not want to grant a period of admission extending beyond the point that is six months prior to the actual expiration of the passport to line up with the regulatory requirement that the actual expiration date of the passport be six months past the expiration of the contemplated period of stay. Mark is realizing his problem now. What can Mark do?

Had Mark taken immediate note of his I-94 expiration date upon his entry in August 2012, Mark could have first sought to obtain an extension of his passport as soon as possible. Then, Mark or his attorney could have contacted the local CBP Deferred Inspection Site in Chicago where Mark lives or at Mark’s actual port of entry at Newark Airport to request that the I-94 expiration date be corrected to correspond with the end date of the I-94 issued by USCIS on Form I-797. This may or may not have been successful as it appears to depend on the particular CBP Deferred Inspection Site.  For instance, some CBP sites take the position that they can only correct this I-94 within 30 days of admission. Other CBP sites will not correct this I-94. And other CBP sites take the position that this I-94 does not even need to be corrected as I-94 on the Form I-797 governs.

If CBP refused to correct the I-94, Mark could have taken a quick trip outside the U.S. prior to February 15, 2013. If he re-entered the U.S. on a valid H-1B visa and he presented his Form I-797, H-1B Approval Notice valid until March 10, 2014 and his newly extended passport, CBP would have issued him an I-94 valid until March 10, 2014. If Mark was unable to travel, his employer could also have filed an H-1B petition for extension with the USCIS taking the position that Mark’s H-1B status was set to expire on February 15, 2013. But none of these things happened. Mark has now remained in the U.S. for more than 180 days beyond the expiration of his I-94.

As Mark’s attorney correctly advised him, it is too risky to travel now. If he travels, Mark will have to apply for a new H-1B visa at a U.S. Consulate abroad and there is the possibility that the Department of State could deny Mark’s visa application and find him inadmissible into the U.S. for 10 years. The only course of action now is for Mark’s employer to file an H-1B petition for extension of Mark’s H-1B status in the U.S. Mark’s employer can argue that Mark was properly maintaining H-1B status in the U.S. despite the expiration of the I-94 issued to him when he last entered the U.S. because the I-94 issued to him on the Form I-797, H-1B Approval Notice remains valid. On the strength of that same I-94, it can be argued that Mark’s employer could continue to employ him. As mentioned above, some CBP offices take the position that the I-94 issued with the Form I-797, Approval Notice governs, that despite the issuance of an I-94 with an expiration date of February 15, 2013, Mark could remain in the U.S. beyond February 15, 2013 and until the 2014 expiration date of his H-1B status as granted by USCIS and as indicated on the I-94 issued by USCIS. There has been no official guidance to indicate that CBP has officially taken this position.  H-1B extensions filed with USCIS on this basis, however, have been successful. 

When filing the H-1B petition, Mark’s employer can also request that although the petition is being timely filed because Mark’s H-1B status will not expire until March 2014, should the USCIS take the position that Mark is not maintaining valid H-1B status, that USCIS forgive the unintentional delay in filing of the petition under 8 C.F.R. 214.1(c)(4). This regulation allows for an extension of stay for a beneficiary who has been unable to maintain his or her previously accorded status where it is demonstrated at the time of filing that (i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; (ii) The alien has not otherwise violated his or her nonimmigrant status; (iii) The alien remains a bona fide nonimmigrant; and (iv) The alien is not the subject of . . . removal proceedings under section 240 of the Act.

An H-1B extension filed on Mark’s behalf prior to March 10, 2014 will hopefully be approved presenting these arguments. However, there really is no substitute for the peace of mind that comes with ensuring that one never remains in the U.S. beyond the expiration date on the I-94. Foreign nationals need to remain vigilant when entering the U.S. making sure that they check their I-94 card (if issued one) or printout their I-94 from the CBP website. As attorneys, our best practice is encourage our clients to always update us on their travel dates and with copies of their I-94 upon re-entry into the U.S. 

(The blog is for informational purposes only and should not be relied upon as a substitute for legal advice.)

PAROLE IN PLACE: THE SECRET SAUCE FOR ADMINISTRATIVE IMMIGRATION REFORM

By Gary Endelman and Cyrus D. Mehta

On November 15, 2013, the USCIS issued a Policy Memorandum formalizing the granting of parole to persons who are present in the United States without admission or parole and who are spouses, children and parents of US citizens serving in the US military or who previously served in the US military. While parole traditionally applies to those who seek to come to the United States, the expansion of this concept to those already here is known as “parole in place”.

According to this memo, military preparedness can be potentially adversely affected if active members of the military worry about the immigration status of their spouses, parents and children. The memo makes a similar commitment to veterans who have served and sacrificed for the nation, and who can face stress and anxiety because of the immigration status of their family members. Such persons can now formally apply for parole in place (PIP) through a formal procedure pursuant to the ability of the government to grant parole under INA section 212(d)(5)(A). PIP would allow them to adjust status in the US rather than travel abroad for consular processing of their immigrant visas and thus potentially triggering the 3 or 10 year bars.

As a quick background, an individual who is in the US without admission or parole cannot adjust status through an immediate relative such as a US citizen spouse, parent or son or daughter. This person is inherently inadmissible under INA section 212(a)(6)(A)(i), which provides: 

An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

Section 212(a)(6)(A)(i) renders an alien inadmissible under two related grounds: 1) an alien present in the US without being admitted or paroled or 2) an alien who arrives in the United States at any time or place other than as designated by the Attorney General.

The grant of PIP to a person who is present in the US without being admitted or paroled can wipe out the first ground of inadmissibility in section 212(a)(6)(A)(i). PIP would then also allow this person to adjust status in the US under section 245(a) - as the person needs to have been “inspected and admitted or paroled” – without needing to leave the US.  The ability to adjust status through PIP would obviate the need  to travel overseas and apply for the visa, and thus trigger the 3 or 10 year bar pursuant to INA section 212(a)(9)(B)(i) and (ii). Since there will be no departure triggering the 3 and 10 year bars, this person would no longer need to file a waiver or an advance provisional waiver by demonstrating extreme hardship to a qualifying US citizen relative to overcome the 3 and 10 year bars before leaving the US.

So far so good, but how does one overcome the second ground of inadmissibility in section 212(a)(6)A)(i), which relates to “an alien who arrives in the United States at any time or place other than as designated by the Attorney General?” The memo skillfully interprets this clause as relating to an alien who is in the process of arriving in the US without inspection. Thus, the second ground only applies to an alien who is presently arriving in the US while the first ground applies to an alien who already arrived in the US without admission or parole. If the second ground is interpreted as applying to an alien who arrived in the past, then it would make the first ground superfluous, according to the memo. It would also then make the 3 year bar under INA section 212(a)(9)(B)(i) superfluous as a person who at any point arrived, if used in the past tense,  at a place or time other than designated by the Secretary of Homeland Security would be  permanently inadmissible rather than inadmissible for only 3 years. Thus, if the second ground of inadmissibility is no longer applicable with respect to an alien who has already arrived in the US, then the grant of PIP would allow such a person to adjust in the US by overcoming the first ground under INA section 212(a)(6)(A)(i).

The extension of PIP to the families of current or former military service men and women is a proper recognition of their contribution to the nation and an attempt to benefit those who have given so much to the rest of us.  While such logic is compelling, why not expand its application to other instances where aliens have served and strengthened the national interest or performed work in the national interest? How about granting PIP to families of, outstanding researchers striving to unlock the mysteries of science and technology, those with exceptional or extraordinary ability, and key employees of US companies doing important jobs for which qualified Americans cannot be found? And there is also a compelling interest in ensuring family unification so that US citizens or permanent residents may feel less stressed and can go on to have productive lives that will in turn help the nation.  All such people do us proud by making our cause their own and the need of their loved ones to come in from the shadows is real and present. Indeed, the non-military use of PIP was advocated by top USCIS officials several years ago in a memo to USCIS Director Mayorkas, a memo leaked by its critics who wished successfully to kill it.

In the face of inaction on the part of the GOP controlled House to enact immigration reform, granting PIP to all immediate relatives of US citizens would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility. 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 memo currently 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. What about INA section 245(c)(2)’s insistence on “lawful immigration status” at the snapshot moment of I-485 submission?  Even this would not be a problem. For purposes of section  245(c) of the Act, 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.

There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.  The holistic approach to parole for which we argue is a prime example of this second approach. The term “status” is not defined anywhere in the INA.  By ordinary English usage, “parolee status” is a perfectly natural way of describing someone who has been paroled. Parole is a lawful status in the sense that, by virtue of the parole, it is lawful for the parolee to remain in the United States, at least for the authorized period of time under prescribed terms and conditions. We credit David Isaacson for suggesting that there are other instances in the INA where lawful status does not automatically equate to nonimmigrant status: for examples, asylum status under INA Section 208 and refugee status under INA section 207 are lawful statuses, even though strictly speaking, neither an asylee nor a refugee is a nonimmigrant according to the INA Section 101(a)(15) definition of that term. The Executive can easily revise the memo for military families to declare parole under INA  section 212(d)(5) a status  because it has already declared parole a lawful status for NA 245(c)(2) purposes under 8 C.F.R. 245(d)(v), asylum a lawful status under INA section 208, and refugee a lawful status under INA section 207.  See 8 C.F.R. 245.1(d)(iii)-(iv). In all three cases, people are allowed into the United States in a capacity that is nether legal permanent residence nor, strictly speaking, nonimmigrant.  True, INA section 101(a)(13)(B) does say that parolees are not “admitted”, but is one who enters without admission and is granted asylum under INA 208 ever been “admitted” per the statutory definition of that term? Yet, such a person has a lawful status.

One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 and 10 year bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the 3 or 10 year bars, as well as trying to overcome the bars by demonstrating extreme hardship to qualifying relatives, which is a very high standard. 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.

 There is no doubt that the memo for military families is a meaningful example of immigration remediation through executive initiative. Yet, it is one step in what can and should be a much longer journey. In the face on intractable congressional resistance, we urge the President to take this next step.

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

WAIVING GOODBYE TO UNAPPEALABLE DECISIONS: INDIRECT AAO JURISDICTION, OR WHY HAVING YOUR APPEAL DISMISSED CAN SOMETIMES BE A GOOD THING

By David A. Isaacson

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals.  This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1.  Pursuant to that delegation, as many AAO decisions state, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003.  (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.) 

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e).  Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii).  But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions.  If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted.  Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.  Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications.  And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place.  If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application.  That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary.  Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisions from 2012; 2010; February, March, April and June of 2009; 2008; and 2007).  Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from January and March of 2009, 2008, and 2006).  Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi”, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction.  Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009 and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006).  AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official.  Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v).  For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa.  In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit.  The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4. 

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself.  The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception.  Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT.  The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa.  In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989.  In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11) applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”  And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility.  Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case.  If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

DEFERRED ACTION: THE NEXT GENERATION

By Gary Endelman and Cyrus D. Mehta

President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a particular alien. While critics decry that Obama has circumvented Congress, the Administration has always had executive branch authority to exercise prosecutorial discretion, including deferred action, which is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport undocumented children who lacked the intention to violate their status and who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed.

We have always advocated that the Administration has inherent authority within the INA to ameliorate the hardships caused to non-citizens as a result of an imperfect and broken immigration system. In Tyranny of Priority Dates, we argued that the Administration has the authority to  allow non-citizens who are beneficiaries of approved family (I-130) or employment-based (I-140) petitions affected by the crushing backlogs in the priority date system to remain in the US through the grant of parole under INA 212(d)(5) based on “urgent humanitarian reasons or significant public benefits.” When the DREAM Act passed the House in 2010, but narrowly failed to garner the magic super majority of 60 in the Senate, we proposed that the President could also grant similar parole to DREAM children as well as deferred action in our blog, Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes The Dream Act.

 The new memorandum directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

While this memorandum is indeed a giant step in providing relief to a class of immigrants who have been out of status for no fault of their own, we propose other incremental administrative steps so that such individuals, even after they have been granted deferred action and work authorization, can obtain permanent residence. We are mindful, as the accompanying FAQ to the memorandum acknowledges, that the grant of deferred action does not provide the individual with a pathway to permanent residence and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”  But just as people were skeptical about our ideas for administrative action when we first proposed them, some of which has come to fruition, we continue to propose further administrative steps that the President can take, which would not be violative of the separation of powers doctrine.

There are bound to be many who have been granted deferred action to also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions. Unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted an inspected, filing an application for adjustment of status to permanent residence will not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

We propose that the USCIS extend the holding of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) to beneficiaries of deferred action. In Arrabelly and Yerrabelly, the BIA held that an applicant for adjustment of status, who leaves the US pursuant to a grant of advance parole, has not effected a departure from the US in order to trigger the 10 year bar under INA § 212(a)(9)(B)(i)(II). If a beneficiary of deferred action is granted advance parole, this person’s trip outside the US under this advance parole ought not to be considered a departure. Such facts would square with Matter of Arrabelly and Yerrabelly if the individual returned back to the US under advance parole. However, here, the individual may likely return back on an immigrant visa and be admitted as a permanent resident. That might be hard to sell to the government – how can you apply for a visa at a consulate in a foreign country and still not leave USA? Still, this idea has merit as it is the initial “departure” under advance parole that would not be a trigger for the bar to reentry, not the subsequent admission as an immigrant. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.” Using  Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

As an alternative we propose, as we did in The Tyranny of Priority Dates, that the government, in addition to the grant of deferred action, also grants parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5).  For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” The concept of parole in place was also proposed in the leaked memo. Interestingly, in this memo, a prime objective of granting parole in place was to avoid the need for consular processing of an immigrant visa application: “By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger the bar to returning.”  This would only be the case, however, where the adjustment applicant is  married to a US citizen, or is the minor child or parent of a US citizen,  and need not be barred due to lack of an inspection or admission. Because we advocate a much wider extension of parole in place, the need for retroactivity, both for the parole and companion employment authorization becomes readily apparent. The use of parole in place, while not common, is certainly not without precedent and, as the leaked memo recites, has been expansively utilized to promote family unity among military dependents. For our purposes, “applicants for admission who entered the US as minors without inspection” were singled out as a class for whom parole in place was singularly suitable.

 Upon such a grant of parole in place retroactively, non-immediate relatives who have not maintained status may also be able to adjust status.   Such a retroactive grant of parole, whether in the I-130 or I-140 context, would need to be accompanied by a retroactive grant of employment authorization in order to erase any prior unauthorized employment.  We acknowledge that it may be more problematic for the individual to be eligible for adjustment of status through an I-140 employment-based petition rather than an I-130 petition, since INA § 245(c)(7), requires an additional showing of a lawful nonimmigrant status, in the case of an employment-based petition under INA § 203(b).  Still,  the grant of nunc pro tunc parole will wipe out unlawful presence, and thus this individual can leave the US and apply for the immigrant visa in the US Consulate in his or her home country without the risk of  triggering the 3 or 10 year bar.

One conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection.  But this impediment can be overcome: It may be possible for the government to rescind the grant of admission, and instead, replace it with the grant parole under INA § 212(d)(5). As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to DHS, who can retroactively rescind the grant of admission in B-2 status and be retroactively granted parole.

There may be other obstacles for individuals in removal proceedings or with removal orders, but those too can be easily overcome. If the individual is in removal proceedings, if he or she is also eligible for deferred action, such removal proceedings can be terminated and he or she can also receive a grant of nunc pro tunc parole, thus rendering him eligible for adjustment of status in the event that there is an approved I-130 or I-140 petition. Even a person who already has a removal order can seek to reopen the removal order through a joint or consent motion with the government for the purposes of reopening and terminating proceedings, and this person too could potentially file an adjustment application, if he or she is the beneficiary of an I-130 upon being granted  nunc pro tunc parole, and the beneficiary likewise could travel overseas for consular processing without risking the 10 year bar.  

We of course would welcome Congress to act and pass the DREAM Act, as well as Comprehensive Immigration Reform, so that this memorandum does not get reversed or discontinued in the event that a new Administration takes over from January 2013. However, until Congress does not act, the June 15, 2012 memo does provide welcome relief for young people, but it still leaves them in a limbo with only deferred action. The elephant in the room may be whether the USCIS has the capacity to deal with hundreds of thousands of requests for deferred action. In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently,  all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President’s initiative of last Friday does not become a dead letter. Our proposal for an additional grant of nunc pro tunc parole in place to individuals who have already been conferred deferred action will at least allow them to enter the regular immigration system and hope to adjust status to permanent residence, or consular process, and thus on the path to citizenship, should they become the beneficiaries of approved family or employment-based petitions. Again, as we noted earlier, and as we noted in Tyranny of Priority Dates, we are not asking for the executive branch to create new forms of status. We are only asking for the Executive to remove barriers to the ability of otherwise deserving applicants for permanent residents to take advantage of the existing system. We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday’s memorandum. We also want to emphasize that I-130’s and I-140s will still be necessary. We do not want to create a new system, only to allow the old one to work more effectively. The future is ours to shape. For those who lack faith, we remind them of Tennyson’s injunction in Ulysses: “Come my friends, ‘tis not too late to seek a newer world.”