Seguritan US Immigration Articles

Deferred Action or Parole to Undocumented Aliens?


There will most probably be no comprehensive immigration reform this year. At a recent meeting of Democratic senators and immigration advocates, a consensus was reached that it would be difficult to pass a bill before the November election because of strong Republican opposition.

The Democrat’s strategy now is to try to push for the passage of legislations with bipartisan support such as the DREAM Act and the AgJOBS Act.

The DREAM Act (Development, Relief, and Education Act for Minors) would grant permanent resident status to undocumented students who have been residing here in the U.S. for several years while the AgJOBS Act (Agricultural Job Opportunity, Benefits and Security) would give temporary immigration status and eventually permanent resident status to undocumented farmworkers who have worked in the U.S.

There are rumors of another option. The current administration may be contemplating to grant either deferred action or parole to millions of undocumented aliens with no criminal record. Such action which does not need congressional approval would defer their deportation and allow them to stay in the U.S. and work.

The rumors about such an executive act have been widespread that 8 Republican senators wrote a letter to President Obama last June 21 asking him to confirm or deny it. The senators were Chuck Grassley, Orrin Hatch, Jim Bunning, Saxby Chambliss, Jim Inhofe, Johnny Isakson, Thad Cochran and David Vitter. Incidentally, these senators voted against the immigration reform bill that passed the Senate in 2007.

Their letter alleged that President Obama is pushing to develop a “plan to unilaterally extend either deferred action or parole to millions of illegal aliens in the U.S.” and that this plan will cover those “who willfully overstayed their visas or filed for benefits knowing that they will not be eligible for a status for years to come.”

They asked the President to abandon such a plan because “such deferred action and parole are discretionary actions reserved only for individual cases that present unusual, emergent or humanitarian circumstances.” They further said that it would circumvent the constitutional authority of the Congress to legislate immigration policy.

Deferred action and parole by the executive branch have been granted in the past. I recall that in 1977, the then Immigration and Naturalization Service (INS) granted deferred departure to hundreds of out of status nurses, mostly from the Philippines, who faced the threat of deportation for failing their licensure exams or for changing their employer without authority.

Those nurses, including those who were already under deportation proceedings, were given deferred departure status in 6-month increments up to a total of 3 years. And when they passed their licensure exams they were restored to lawful status.

The deferred status was the result of an agreement between the INS and the National Alliance for Fair Licensure of Foreign Nurse Graduates which I represented.

Changing Jobs While Adjustment Application is Pending

Concerns about backlogs in the processing of adjustment of status applications (I-485) led Congress to enact the American Competitiveness in the 21st Century Act of 2000 (AC21).

This law provides that an I-485 application based on first preference (EB-1), second preference (EB-2) or third preference (EB-3) employment-based petition (I-140) that has been filed and remain unadjudicated for 180 days or more shall remain valid even if the applicant changes jobs or employers.

The new job must be in the same or similar occupational classification as the job for which the petition was filed.

The request to change employment must be communicated by the beneficiary or his/her representative to the USCIS by submitting a letter from the new employer stating the job title and duties, the minimum requirements of the job, the date the alien began or will begin employment and the offered salary.

In determining whether the old and the new jobs are the same or similar, the USCIS will consider the description of the job duties. A difference in the wages is not a ground for denying the adjustment application as long as the discrepancy is not substantial. Geographic location of the new employment is not relevant in the determination.

The alien applicant may change or port to self employment provided the new employment is the same or similar. But the intent of the alien and the employer is a relevant factor.

The employer must have had the intent to employ the beneficiary at the time of the filing of the I-140 and I-485 and the alien must have intended to work for the employer upon his/her adjustment of status.

Multinational managers or executives may also port even to an unrelated company provided the job duties of the old and new jobs are the same or similar.

It is not required that the alien has been working for the petitioner while the I-140 and I-485 are pending. If he/she is working for the petitioner, he/she is not prohibited from leaving before the I-485 has been pending for 180 days.

Porting may be requested even if the I-140 which was concurrently filed with the I-485 is still pending. But the I-140 must have been approvable when it was filed. This means that there was a valid job offer and that the alien was eligible for the employment preference classification. The I-140 petition must be approved before portability is granted.

If the I-140 petition is withdrawn before the 180-day period, porting is not allowed. The I-140 is also not valid for porting if it is denied or revoked at any time except when the revocation is due to the withdrawal of the petitioner after the 180-day period.

But in a recent case, porting was not allowed even though the withdrawal of the I-140 petition occurred after the I-485 application was pending for more than 180 days. The applicant in this case was the beneficiary of a labor certification which became the basis for the filing and approval of the I-140 petition. Before the applicant could adjust status, the petitioner withdrew the I-140 petition and requested to substitute a new alien into the proffered position using the applicant’s original labor certification.

On the basis of the withdrawal, the USCIS automatically revoked the I-140 petition, approved the I-140 petition of the substituted alien as well as the adjustment of status. The District Director held that although the adjustment application had been pending for more than 180 days the applicant was ineligible to adjust as there was no longer a valid labor certification. This denial was affirmed by the Administrative Appeals Office.

Family Preference Cut-off Dates Rapidly Move Up

The July 2010 Visa Bulletin shows significant advances in the family-based preference categories. The worldwide cut-off dates move up by several months from those indicated in June 2010 as follows: 1st preference – 7 months (April 1, 2005); 2A preference – 6 months (July 1, 2008); 2B preference – 5 ½ months (May 1, 2003); 3rd preference – 2 ½ months (September 1, 2001); and 4th preference – 4 months (January 1, 2001).

Applicants who have a priority date earlier than the abovementioned dates may be allotted visa numbers starting July 1. Those who are in the U.S. may be able to file their adjustment of status and employment authorization applications while those who are processing their immigrant visa applications abroad may be scheduled for visa interview.

The advance in the cut-off dates for Philippine applicants are as follows: 1st preference – 5 ½ months (September 1, 1995); 2A preference – 6 months (July 1, 2008); 2B preference – 12 months (March 1, 2000); 3rd preference – 12 months (May 1, 1993); and 4th preference – 12 months (April 1, 1989).

Benefiting the most under this latest development are the applicants under the 2B, 3rd and 4th preferences.

The 2B preference refers to the unmarried sons and daughters (21 years or older) of lawful permanent residents. The 3rd preference refers to the married sons and daughters of U.S. citizens. The 4th preference refers to brothers and sisters of U.S. citizens.

Philippine 2B applicants whose lawful permanent resident petitioners have become U.S. citizens are automatically reclassified under the 1st preference resulting in a much longer wait. They can avoid this by opting out to remain under the 2B preference.

Since April 2010, the Philippine family-based preferences have jumped considerably as follows: 1st preference – 18 months; 2A preference – 25 months; 2B preference – 17 ½ months; 3rd preference – 12 months; and 4th preference – 19 months.

The big jump in the family-based preferences is attributed to the very low level of demand for visa numbers in the last 1 ½ years. The U.S. Department of State has increased the pace in an attempt to generate demand so that the annual numerical limit of 226,000 may be utilized.

Applicants whose priority dates are earlier than the cut-off dates should complete their documentary requirements for their immigrant visa or adjustment of status applications. The Department of State has said that if the demand for visa numbers increases, the movement of the cut-off date would slow or stop.

The trend in the employment-based 3rd preference category is different. The demand for visa numbers continues to be heavy and therefore the cut-off dates have barely advanced.

The July 2010 worldwide (except for India and Mexico) cut-off date for 3rd preference skilled workers and professionals advances by 7 weeks (August 15, 2003) while that of the 3rd preference other workers category remains unchanged (June 1, 2001) as it has been since October 2009.

Mexican 3rd preference visa numbers continues to be unavailable while India’s 3rd preference skilled workers advances only by 1 month.

Based on current demands, the Department of State projects that by September 2010 which is the end of the current fiscal year, the worldwide cut-off dates (including Philippines) for the employment-based 3rd preference will be June through September 2004. The cut-off date for China will be October through December 2003 while India’s will be February 2002.

Enforceability of Affidavit of Support

Most family-based applicants for immigrant visa or adjustment of status are required to submit an affidavit of support (Form I-864) to guarantee that they will not become a public charge.

The affidavit must be completed by the U.S. citizen or lawful permanent resident who filed the relative (Form I-130) petition. The petitioner-sponsor must demonstrate that his/her income is at least 125% of the current federal poverty guidelines for his/her household size.

If the sponsor’s income is not sufficient to meet the requirement, the income of the spouse and/or other relatives living with him may be used. The income of unrelated dependents listed on the tax returns may also be included regardless of where they reside. The intending immigrant’s income may also be added to meet the requirement.

If the petitioner falls short of the requirement, a joint sponsor may submit a Form I-864. A joint sponsor must be a U.S. citizen or lawful permanent resident who is at least 18 years old and domiciled in the U.S. or its territories. A joint sponsor does not have to be related to the petitioner or the intending immigrant.

Substitute sponsors are also allowed if the original I-130 petitioner has died and the petition is allowed to continue. Under a recent law, surviving relatives of an I-130 petitioner may process their green card applications provided they were here in the U.S. at the time of the death of the petitioner and they continue to reside in the U.S.

A substitute sponsor must be related to the intending immigrant in one of the following ways: spouse, parent, mother-in-law, father-in-law, sibling, child at least 18 years old, son, daughter, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild or legal guardian. Such relative must be a U.S. citizen or a lawful permanent resident.

Executing the I-864 affidavit of support should not be taken lightly as it is a legally binding contract once the sponsored alien becomes a lawful permanent resident. It may be enforced against the sponsor and/or joint sponsor by a federal state or local governmental agency or by the sponsored immigrant.

If the sponsored immigrant receives means-tested benefits after he/she gets the green card, the government agency that gave the benefits may sue the sponsor to recover the funds given to the immigrant. The said sponsored immigrant who receives means-tested public assistance may be subject to removal proceedings.

Under the law, the sponsored immigrant also has the right to enforce his/her sponsor’s obligations. This could happen in a divorce proceedings. Even if the immigrant cannot be granted alimony, she may be entitled to support from the sponsoring spouse under the terms of the affidavit of support.

The sponsor’s obligation under the affidavit of support continues until the sponsored immigrant becomes a citizen or until he/she accumulates 40 qualifying quarters of work under the Social Security law or until he/she abandons permanent resident status and leaves the U.S.

Death of either the sponsor or the immigrant also extinguishes the obligations. But a divorce is not a ground to end the obligation.

Entering the U.S. for Humanitarian Reasons

Individuals who want to enter the U.S temporarily for emergency or humanitarian reasons but are unable to obtain a visa may apply to the Department of Homeland Security to be granted parole.

The application is filed on Form I-131 Application for Travel Document and must be supported by an affidavit of support to guarantee that the parolee will not become a public charge.

The application may be filed by the prospective parolee, a sponsoring relative, an attorney or any other interested individual or organization. The application will be adjudicated within 90 to 120 days. Extremely urgent cases may be processed in a few days.

The parole may be granted for a period of time corresponding to the duration of the urgent situation. The maximum time allowed is one year. The individual must depart from the U.S. before the expiration of his/her parole status otherwise he/she would be deportable. If more time is needed, the parolee may submit a request for reparole to extend his/her stay.

The application must include a detailed explanation of the emergency or humanitarian situation, the length of time needed, and the reasons why he/she cannot obtain a visa. If a visa application was previously denied, a copy of the denial should be submitted.

If the application is for medical reasons, a letter from a medical doctor is required, indicating the diagnosis and prognosis. Also included should be information on how long the treatment is expected to last, how much the treatment will cost and who will pay for it and why the treatment is not available in his/her home country or in a neighboring country.

Other relevant evidence such as copy of any approved immigrant visa petition, tax returns, etc. should also be submitted.

The USCIS has emphasized that parole should not be used to avoid regular visa-issuing procedures or to bypass immigration procedures. In a recent report by the US Government Accountability Office, 76% of the applications submitted within the 6-year period in the report were denied.

About 57% of those denied were due to the failure to exhaust other avenues of immigration available to the applicants. About 64% of the almost 9000 humanitarian parole applications adjudicated in the 6-year period were for family reunification or medical emergency.

An example of a medical emergency is the case of a 7-year old boy with a congenital heart defect who came to the U.S. with her mother for free open heart surgery.

An example of family reunification is the case of a baby born after the parents became immigrants but prior to their entry into the U.S. An I-130 relative petition was filed immediately after the baby was born but could not be granted an immigrant visa because of the unavailability of a visa number. A humanitarian parole was granted to the baby for one year.

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