In the first week of May—without comment or, apparently, any concern for its impact—U.S. immigration officials unilaterally rewrote the law, disqualifying thousands of families and workers trapped half-way through the green card process. As a result, people who just last month would have been welcomed as legal residents are now facing deportation, most with no hope of return.
It’s not clear what prompted this policy, but the draconian new interpretation wasn’t needed to implement or comply with new law. And given the administration’s stated goals of promoting both change and transparency, this mean-spirited end run by an agency that lacks even a sitting Director, is puzzling at best.
In our current “zero-tolerance” climate, even the most minor immigration violation often prevents a person from obtaining legal status. Since 1996 (and before), our immigration laws have provided severe penalties for overstaying a visa, working without proper documents or remaining in the country unlawfully. At the same time, however, Congress also provided a limited—and critical exception: those with established family ties or employment–people with no criminal history, no record pf serious immigration violations or security concerns–might nonetheless complete the process after paying a whopping $1000 fine, beyond the usual hefty fees and expenses.Even with these harsh restrictions, for those that complied with the law, there was at least the prospect that families could be reunited and needed workers successfully become residents.
But that all changed when USCIS—the agency tasked with adjudicating immigration benefits—decided to ignore more than a decade of precedent (including two circuit courts of appeals decisions).Now, the agency will not only refuse to accept any applications filed under this provision, but will deny—and seek to deport–those who relied on the law.
These immigrants weren’t taking advantage of a loophole or cutting ahead of the thousands who are trapped in our unworkable immigration system:on the contrary, they stood in line and paid thousands in extra fines and fees; and many have been waiting more than a decade for their chance at citizenship.
This decision doesn’t just impact intending immigrants, but also their families, employers and the communities in which they have legally resided all these years.We insist that would-be immigrants play by the rules, but what happens when USCIS changes the rules in the middle of the game? We all lose.
Editor’s Note: The policy change referenced here relates to a May 6, 2009 USCIS memo on Consolidated Guidance Concerning Unlawful Presence.
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This posting is very irresponsible. Although it does not clearly indicate it, the message appears to relate to the information provided in the CIS Interoffice Memorandum, dated May 6, 2009, concerning Consolidation of Guidance Concerning Unlawful Presence, under the caption Special Concerns Regarding Section 245(i)-Applications. It implies that CIS has effectively and unilaterally repealed section 245(i); but that is not the case.
The memo in question points out and adopts the BIA's decisions regarding the scope of 245(i)'s benefit. Specifically, it indicates that section 245(i) does not cure inadmissibility under sections 212(a)(9)(B)&(C)–i.e., that someone adjusting status under 245(i) would still require a waiver of inadmissibility if subject to either of those grounds of inadmissibility.
It is difficult (though not impossible) to imagine a scenario in which someone who is inadmissible under 212(a)(9)(C) might, nonetheless, adjust status under 245(i); however, there will be many applicants who can adjust under 245(i) with an I-601 waiver of the 3 and 10 year bars–namely, those who have re-entered as wave-throughs or with fraudulent documents, irrespective of any interpretation of 245(a) that may require an admission to be lawful.
My point here is not that I like this interpretation of the law; rather, it is that overly-politicized and unreasoned rants like this one do no one any good–especially not the AILA membership. Upon my arrival at the office today, a colleague announced that, according to the AILA website, CIS will no longer accept 245(i) filings. That interpretation of this posting is certainly reasonable; but it is simple not true.
The caption to this page indicates that "the elected leadership of the American Immigration Lawyers Association (AILA), [is trying] to help focus the national debate on the real facts about immigration." This posting does not do so.