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< Back to current issue of Immigration Daily

Executive Intent Part II: Immigration Regulation Implementation Policy Options Past and Present

by Joseph P. Whalen

The Secretary of Homeland Security has submitted (on 1/6/12) a "Notice of Intent" for publication in the Federal Register (on 1/9/12). This is a clear statement of Executive Intent[1] of changes proposed by USCIS as to the processing of certain I-601 waiver applications.

The Notice addresses key elements of USCIS's proposed change[2] to its current process for filing and adjudication of waivers of inadmissibility (I-601) for unlawful presence (ULP) for immediate relative (IRs) of U.S. citizens[3] . This is the problematic inadmissibility ground that only kicks in when the alien departs the U.S. and may be barred for three (3) or ten (10) years due to having been unlawfully present for periods in excess of 180 days (around six (6) months) or one (1) year, respectively. It seems clear, at least to me, that Congress intended this to be a punitive measure and it is indeed sorely felt as a punishment for illegal entry and/or overstaying your welcome (past your I-94 expiration date for a particular admission or certain other dates of expected departure).

  • The focus on family unification of U.S. citizens and their immediate relatives is consistent with Congress's prioritization in the immigration laws

  • Aliens who fall under any other family-based or employment-based or other[4] visa category or whose section 212(a)(9)(B)(v) waiver eligibility would be based on extreme hardship to a lawful permanent resident alien relative would not be considered for provisional waivers.

  • Aliens who are subject to other grounds of inadmissibility or removal also would not be considered for provisional waivers.

  • Further, aliens with waiver applications under section 212(a)(9)(B)(v) of the Act currently pending in either administrative or judicial proceedings would not qualify for this new process.

  • Note: Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.

USCIS has learned from past mistakes and is being proactive in its clarity on these procedural points. Such clarity meets and defeats the anticipated future challenges on such nonsensical issues that have been problematic in the past and would most certainly be tried again if not plainly blocked from the start.

A case in point goes back to the religious worker rule. From a non-precedent AAO Decisions at: Jan132010_02C1101.pdf.

"As required under section 2(b)(l) of the Special Immigrant Nonminister Religious Worker Program Act, Pub. L. No. 110-391, 122 Stat. 4193 (2008), U.S. Citizenship and Immigration Services (USCIS) promulgated a rule setting forth new regulations for special immigrant religious worker petitions. Supplementary information published with the new rule specified:

"All cases pending on the rule's effective date . . . will be adjudicated under the standards of this rule. If documentation is required under this rule that was not required before, the petition will not be denied. Instead the petitioner will be allowed a reasonable period of time to provide the required evidence or information." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008)."

However, even earlier than that in connection with a change relating to an earlier incarnation of the immigrant investor, the issue of setting Policy as to the Intent for the implementation of a change in a regulation was handled in a different manner.

Matter of Ko, 14 I&N Dec. 349 (Dep. Assoc Comm'r 1973), Decided May 9, 1973, the District Director CERTIFIED his DENIAL to the Regional Commissioner who AFFIRMED and CERTIFIED it further to the Deputy Associate Commissioner, Travel Control who REVERSED the decision and REMANDED the adjustment application for this Investor, to be reconsidered and decided "in conformity with this opinion" [in other words, approve it already!]. The application was filed prior to a change in the regulation and remained pending on the effective date of the revision.

A newer version of 8 CFR 212.8(b)(4) was promulgated at 38 FR 1379 on January 12, 1973 and became effective on February 12, 1973. The new version made the previously undefined "substantial amount of capital" that he "has invested" or is "actively in the process of investing" to be a minimum of $10,000.00 and added a requirement for the investor to have at least one year of experience or training in the commercial or agricultural "enterprise" in which he would "engage".

The Deputy Associate Commissioner held, and set the policy, that this case and any similarly situated (pending on effective date) could be decided under either the previous or current regulation, whichever is more favorable to the alien investor. The respondent had previously run a retail grocery store and opened a shoe store in the U.S. with the proceeds from the sale of that grocery store back in Argentina [$18,000.00]. The lower decisions disallowed the "experience" but the appellate decision said it was similar enough as an "entrepreneur or manager" regardless of the lack of an exact match in the businesses, i.e. it was still an owner-operated "retail store" with additional employees beyond the investor alone.

Above found at: http://www.justice.gov/eoir/vll/intdec/vol14/2201.pdf

The clear statements in the "Notice of Intent" expressed by the Secretary of Homeland Security as to her delegation of authority to U.S. Citizenship and Immigration Services (USCIS) as it relates to this matter is a welcome development.

_______________________________________
Footnotes

1 See "Executive Intent in EB-5: It Is What It Is, For Now. -OR- Past, Present and Future Tension" by Joseph P. Whalen at http://www.ilw.com/articles/2011,1108-whalen.shtm#6
2FR Doc. 2012-140 Filed 01/06/2012 at 8:45 am; Publication Date: 01/09/2012
3The term "immediate relative" means the spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old. Certain self-petitioners (i.e., widows/widowers of U.S. citizen and their minor unmarried children) may also be considered immediate relatives.
4 For instance, diversity visa lottery or certain special immigrant visas and/or changes and/or extensions of non-immigrant visa classifications


About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


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


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