Immigration Lawyers

It is true. There is much he can do to help undocumented youth. Here I outline just two things that President Obama can do to help DREAMers without any help from Congress. The President can do the following:

1) Instruct DHS Secretary Janet Napolitano to use her discretionary authority to waive the 10 year bar for unlawful presence for nonimmigrant purposes only, to allow college graduates to obtain H-1B work visas after returning briefly to their home country for visa stamping. Such college graduates would begin running the 10 year clock even while in the U.S., would be able to extend their lawful H-1B work status, and after 10 years could finish the process of adjusting status to green card holders;

2) Instruct the Secretaries of each military branch to remove the green card prerequisite for military enlistment for graduates of U.S. high schools, because this condition is not required during times of war. Such graduates who enlist would be eligible to apply for U.S. citizenship immediately upon enlistment.

College Graduates and the Professional Workforce

President Obama can enable undocumented college graduates to obtain work visas, all on his own. An important thing to know about this option is that the immigration laws provide for a number of work visas, one of which is the H-1B work visa. This is designed for those who have bachelor’s degrees or higher, and who have an offer of employment in a job that requires their specific degree – a “specialty occupation.” Examples of specialty occupations are architects, biologists, engineers, lawyers, physicians, teachers, market research analysts, information technology workers, industrial designers, pharmacists, and many other occupations. Anything that requires a specific degree field for entry into the occupation should generally qualify. H-1B workers must be paid prevailing wages, which are determined by Department of Labor (DOL), and various provisions of the law protect both H-1B workers and U.S. workers from exploitation and unfair labor practices.

Prospective employers of undocumented college graduates can file a nonimmigrant petition (called a Form I-129 with H Supplement) for the undocumented graduate, requesting that the approval of the classification be sent to the U.S. consulate abroad for visa issuance. The petition approval makes the person “eligible” for the H-1B visa classification, one of two prerequisites to legal admission. The option of consular processing, as opposed to a change of status request, is necessary due to the nature of the undocumented college graduate – one cannot change to legal status from no status. Therefore, it is necessary, prior to the H-1B status being granted, for the graduate to depart the country, obtain a visa based on the approved petition, and re-enter the U.S. legally through Customs and Border Protection (CBP) inspection.

The problem, of course, is that such an undocumented graduate will almost always have had enough unlawful presence (either 6 months or 1 year) beyond his or her 18th birthday to trigger the 3 or 10 year bar on admission after leaving the U.S. The 3 and 10 year bars are called bars to “admissibility,” meaning that the person is “inadmissible” to the U.S., despite being “eligible” for H-1B classification. Recall that I said eligibility is one of two criteria for legal status, and one needs both eligibility and admissibility to be here legally. The State Department cannot issue a visa to someone who is inadmissible, and CBP will not admit such a person to the U.S. What to do then?

The Immigration and Nationality Act (INA) contains a section, INA 212(d)(3), which gives the Secretary of the Department of Homeland Security (Ms. Napolitano) authority to temporarily admit anyone despite their inadmissibility, for purposes of a nonimmigrant admission. To clarify, you may have heard that there is no waiver of the 3 and 10 year bars for those without qualifying U.S. citizen or permanent resident relatives, to whom one must show extreme hardship. That is true of the immigrant waiver – a waiver for the purpose of immigrating as a permanent resident (the so-called “green card”). For purposes of getting a temporary nonimmigrant work visa such as the H-1B, however, no such rule applies. Instead, 212(d)(3) of the INA allows Ms. Napolitano to let anyone she wants in temporarily, even those who are inadmissible due to the 3 or 10 year bars. The standard for granting such a “waiver” is merely “discretion” – which means that she can simply decide in her judgment that a waiver is appropriate. Discretion is defined in the administrative context in Black’s law dictionary as “A public official’s or agency’s power to exercise judgment in the discharge of its duties.” That’s a pretty broad standard.

The question arises whether Ms. Napolitano has to exercise her judgment on a case-by-case basis, or whether she can just exercise her judgment for a class of cases. The answer is relatively simple, because another section within 212(d), INA Section 212(d)(5), deals with the authority of the Secretary to grant “parole”, and that section states specifically that parole shall only be granted on a “case-by-case basis”, and 212(d)(3) contains no such limitation. INA Section 212(d) is titled “Temporary Admission of Nonimmigrants”, and both 212(d)(3) and 212(d)(5) fall within that subtitle. When one section of a statute contains an express limitation, while the other section does not, it is generally recognized that the limitation does not apply to the section that contains no specific limiting language. Therefore, a clear reading of the statute reveals that not only does the Secretary have the authority to exercise judgment to grant waivers of inadmissibility on a broad discretionary basis, but she also has the authority to grant such waivers to classes of people who, in her judgment, should be admitted despite being inadmissible. This is legal, and is the law.

It may be that the President has thus far been unwilling to command the agency under his control to exercise blanket discretion in such matters, but to say that he can’t do anything without Congress is not entirely accurate. President Obama holds within his hands the keys to a productive life for undocumented college graduates, and he should now take the steps necessary to unlock the door. If Secretary Napolitano were to issue a Memorandum announcing her intention to exercise discretion on a blanket basis the 212(d)(3) authority for nonimmigrant waivers, her employees would have to follow the guidance and issue the waivers.

Employers could then file H-1B petitions for their undocumented prospective employees, knowing that when the petition was approved the college graduate could travel to their home country to attend a visa appointment at the U.S. consulate, and be given an H-1B work visa. The graduate would then return to the U.S. legally through CBP inspections, and be given the 3 years initial status allowed under the H-1B category. The H-1B petition could be extended for another 3 years, for a total of 6 years. They would be fulfilling the 10 years here in the U.S. instead of abroad. Because many undocumented graduates will have had 1 year of unlawful presence, however, they would need to wait at least 10 years before being eligible to apply for a green card without a waiver.

How does one get from the 6 year maximum time allowed in H-1B status to the 10 year required wait for the green card application? What about that 4 year gap? The answer lies in the immigration laws as currently written once again. Certain provisions of a law passed in 2000, P.L. 106-313, Title I, Sec. 104(c) and 106(b), allow H-1B visa holders to obtain extensions beyond the 6 year limit in either 1 or 3 year increments if a few prerequisites are met. The first is that the employer has tested the labor market, and no available U.S. workers are ready, willing and able to take the job held by the H-1B visa holder. That is called the Labor Certification or “PERM” process. The second requirement is that either a year has passed since the filing of the Labor Certification, or that the Labor Certification has already been approved and the employer has filed an immigrant petition on the employees’ behalf, but the visa quotas are backlogged and the person is not eligible to adjust status yet due to the quota backlog. Therefore, in order for an employer to extend the worker’s status beyond the 6 year limit, a Labor Certification application should be initiated sometime before the sixth year in H-1B status begins.

In summary, President Obama can direct Secretary Napolitano or her designee within the U.S. Citizenship and Immigration Services to issue guidance establishing a blanket 212(d)(3) waiver for any individual (and any dependents if applicable) who 1) graduates from a U.S. High School or University; and 2) is the beneficiary of an approved petition or visa approval for nonimmigrant classification that would allow the person to be here lawfully (including but not limited to E-1/E-2/E-3, H-1B, H-1B1, H-2A, H-2B, H-3, K-1/K-2/K-3, L-1A/L-1B, O-1, P-1/P-2/P-3, Q-1, R-1, TN). Such an individual could then depart the U.S. and apply for a visa abroad, and enter legally. After 10 years in lawful status, such an individual could adjust status based on an employer’s immigrant petition. While there is a form used to apply for a 212(d)(3) waiver, the Form I-192 (fee is $585), the regulations at 8 CFR 212.4(a) provide that if a consular officer or other State Department official recommends the waiver, that no application or fee will be required. So Secretary of State Hillary Clinton could recommend the blanket waiver, Secretary Napolitano could direct the blanket waiver be carried out, and no application form or fee would even be necessary!

There are many protections for both foreign and U.S. workers under the law covering H-1B work visas, as well as other visa types. Additionally, there are protections for foreign and U.S. workers in the green card process managed by the Department of Labor. There is no reason not to have a blanket waiver for individuals in such a case, when the only thing standing in the way of legal status is the unlawful presence bar. Undocumented graduates would still need to wait 10 years before applying for the green card, but in the meantime they would be allowed to start the 10 year clock running, regularize their status in the U.S., and be allowed to participate as a productive member of American society in their chosen field. All this can be done under current law, Mr. Obama, and now you have a choice to make.

High School Graduates and the Military Talent Pool

President Obama can instruct the Secretaries of each military branch to remove the green card prerequisite for military enlistment for graduates of U.S. high schools, because this condition is not required during times of war. Such graduates who enlist would be eligible to apply for U.S. citizenship immediately upon enlistment. The authority for this has already been outlined by Margaret Stock, a renowned immigration authority familiar with both immigration and military issues.

Ms. Stock writes, “Interestingly, current laws regarding military enlistment do not prohibit the Armed Forces from enlisting even illegal aliens in wartime. Title 10, United States Code, Section 3253 states, “In time of peace, no person may be accepted for original enlistment in the Army unless he is a citizen of the United States or has been lawfully admitted for permanent residence…” Margaret Stock, The DREAM Act: Tapping an Overlooked Pool of Homegrown Talent to Meet Military Enlistment Needs, 11 Bender’s Immigration Bulletin 63, 65 (2006). So, while the statute governing military enlistment prohibits undocumented graduates from enlisting during times of peace, no such requirement exists during times of war. President Obama must update the rules used by recruiters, and allow undocumented graduates of U.S. High Schools who meet all other enlistment criteria to enlist. All recruiters are currently using peace-time rules even though we have been at war for nearly a decade.

Once enlisted in the United States, Section 329 of the INA allows the soldier to be naturalized as a U.S. citizen without first having to become admitted as a lawful permanent resident, so long as the enlistment occurred during a time of war or military hostilities as designated by executive order. President Bush’s executive order following the 9/11 terrorist attacks is still in effect, and would provide Section 329 naturalization for any undocumented high school graduate who enlists. Currently, however, recruiters are not allowed by their internal rules to enlist undocumented graduates. The enlistment rules merely need to be updated by the Secretaries of each of the Armed Forces to reflect the provisions of the statute that allow for undocumented American High School graduates to enlist during times of war. All this can be done under current law, Mr. Obama, and now you have a choice to make.