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More Ways to Move Forward on Immigration

by Nolan Rappaport

Philip Wolgin recently wrote an article entitled, "Five Ways to Move Forward on Immigration,"[1] in which he contends that, "the prospects for achieving comprehensive immigration reform (CIR) are dimming; if the Administration could not achieve CIR with a majority in both houses, it just does not seem possible now." Apparently, however, he thinks small fixes can be made in the meantime. He suggests five possibilities.[2] I am going to follow his lead and offer some of my own ideas.

Establish a Commission to determine whether provisions from the immigration systems in other countries would help to fix our broken immigration system. For instance, Canada,[3] New Zealand,[4] and Australia[5] use point systems to select alien workers for employment-based visas. Denmark maintains a large listing of shortage occupations called the "Positive List." If an alien seeking a visa has a job offer from a Danish employer in an occupation on the Positive List, he may be able to obtain a work and residence permit immediately under the Positive List system.[6] Germany permits highly qualified persons to be granted permanent residence if they have a concrete job offer and get permission from the German Employment Agency.[7] Information about immigration systems in more than 20 countries can be found at

Establish Assistance Centers for aliens who want to apply for a nonimmigrant visitor's visa at a State Department Consulate Office abroad. The Assistance Centers would not provide legal services. Their primary role would be to help nonimmigrant visa applicants to understand the 214(b) assumption and what is needed to rebut it. Section 214(b) of the Immigration and Nationality Act (INA)[8] provides that every alien who applies for a visitor's visa at a Consulate Office abroad shall be presumed to be an immigrant (someone coming to the United States to live and work here) until he establishes to the satisfaction of a consular officer that he just wants to visit the United States. The Assistance Centers also would help the aliens to understand the questions on the DS-160: Online Visa Application. Consular officers use the information entered on the DS-160 to process the visa application and, combined with a personal interview, determine an applicant's eligibility for a nonimmigrant visitor's visa.[9] The assistance would make it easier for bona fide tourists to rebut the 214(b) presumption and do the paperwork for obtaining a visitor's visa, which should stimulate an increase in tourist travel to the United States. Moreover, it would serve as a pilot program for developing Assistance Centers to help legalization applicants when a legalization program is established.

Update Section 249 of the INA,[10] the registry provision. Under this provision, a record of lawful admission for permanent residence can be made for any alien who has continuously resided in the United States since before January 1, 1972, and meets other specified requirements. The main justification for the registry provision is that long-time immigrants with strong ties to the country should be allowed to become lawful permanent residents. At some point, an undocumented alien has been in the United States so long that it would be unconscionable to deport him. The registry date has been updated six times since it was established in 1929, but the last update was made 24 years ago in Section 203 in the Immigration Reform and Control Act of 1986 (IRCA).[11] Another update is long overdue.

Establish a waiver of aggravated felony consequences.[12] The aggravated felony provision in the INA was intended originally to provide for the deportation of aliens convicted of very serious crimes, but the provision has been expanded over time to include a plethora of minor crimes that are neither aggravated nor felonious. A lawful permanent resident of the United States can be banished from the country for an offense as minor as writing a bad check, shoplifting, or misdemeanor battery.[13] A waiver should be established that would permit an Immigration Judge in removal proceedings to disregard aggravated felony convictions for immigration purposes, as a matter of discretion, in cases where the conviction did not result in incarceration for a year or more. Serious offenses could still be considered an aggravated felony and be a basis for removal, even if they did not result in a single day of incarceration, but there would be discretion to ignore convictions in cases where the offense was not serious enough to warrant the extreme immigration consequences of an aggravated felony conviction.


1Five Ways to Move Forward on Immigration

2 Pass the DREAM Act; pass the AgJOBS Bill; fix the EB-1 Visa Category; fix the Bar on Material Support for Refugee Status; and eliminate the 1-year Bar on Asylum Claims.

3Canada Skilled Worker Immigration - Points based immigration

4New Zealand Immigration

5Australia Skilled Immigration Points Calculator

6Danish Work Permits

7Introduction to Immigration to Germany

8Immigration and Nationality Act

9DS-160: Online Nonimmigrant Visa Application

10Immigration and Nationality Act

11Immigration Reform and Control Act of 1986

12See Section 809 of Congresswoman Sheila Jackson Lee's Save America Comprehensive Immigration Act of 2009

13"Banished for minor crimes: the aggravated felony provision of the Immigration and Nationality Act as a Human Rights violation," by Melissa Cook.

About The Author

Nolan Rappaport has more than 20 years of experience as an immigration lawyer, including seven as a counsel on the House Judiciary Committee. The immigration bills he has written include the Rapid Response Border Protection Act, H.R. 4044; the Foreign Anti-Sex Offender Protection Act, H.R. 5610; the Save America Comprehensive Immigration Act, H.R. 2092; the Commercial Alien Smuggling Elimination Act, H.R. 2630; the Comprehensive Immigration Fairness Reform Act, H.R. 3918; and the Tsunamis Temporary Protected Status Act, H.R. 60.

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