Leaked USCIS Internal Draft Memo entitled “Administrative Alternatives to Comprehensive Immigration Reform”

A U.S. Citizenship and Immigration Services (USCIS) internal “draft” memo entitled “Administrative Alternatives to Comprehensive Immigration Reform” addressed to Alejandro Mayorkas, the Director of USCIS, was leaked late last week. The draft memo’s stated purpose is to “offer administrative relief options to promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization.”

            The draft memo is 11 pages long and outlines 18 specific proposals to meet the goals outlined in the memo and quoted above. Some of these measures include suggestions such as permitting the automatic extension of Employment Authorization Documents (EAD) “for up to 240 days when an application to extend the EAD has been filed prior to its expiration,” and calling for the publication of “final regulations related to the relief for unaccompanied minors, and for victims of human trafficking, domestic violence and other criminal activities.”

The draft memo also includes the recommendations excerpted below:

Ø  Allow Temporary Protected Status (TPS) applicants who entered without inspection to adjust or change status through administrative fiat.

Ø  Expand the use of Parole-in-Place (PIP) through USCIS’s discretionary authority under section 212(d)(5)(A) of the Immigration and Nationality Act to parole into the U.S. any applicant for admission on a case-by-case basis.

Ø  To increase the number of individuals eligible for waivers, and improve their chances for receiving them, USCIS could issue guidance or a regulation specifying a lower evidentiary standard for “extreme hardship.” This would promote family unity, and avoid significant human and financial costs associated with waiver denial decisions born of an overly rigid standard.

Ø  Partner with Department of Commerce (DOC) to make the EB-5 program more accessible to foreign investors. The EB-5 Immigrant Investor program allows certain aliens who have made investments in U.S. businesses and who created at least ten jobs to obtain Legal Permanent Resident (LPR) status.

Ø  Expand the dual intent doctrine to other major non-immigrant categories including F, O, TN, P and E visa holders, such that they would be able to maintain valid nonimmigrant status and travel overseas without advance parole while their adjustment applications are pending.

Ø  Extend employment authorization to H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under the American Competitiveness in the 21^st Century Act.

Ø  Expand existing “grace periods” to depart the U.S. for a large number of classes of nonimmigrant workers from 10 days to as much as 90 days.

Ø  Expand the availability of premium processing service to additional employment-based classifications.

Ø  Increase the use of “deferred action,” or exercise of prosecutorial discretion not to pursue removal for a particular individual for a particular period of time.

In response to the American Immigration Lawyers Association’s inquiry on the internal draft memo leak, the USCIS has released the following statement:

“Internal draft memos do not and should not be equated with official action or policy of the Department. We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation’s immigration challenges.

Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services side of USCIS – nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.”

To read the USCIS internal draft memo in full, click here.