By Gary Endelman and Cyrus D. Mehta
We cannot teach people. We can only help them discover it within themselves.
On November 21, 2014, as part of President Obama’s Executive Actions, the President issued a memorandum to modernize and streamline the U.S. immigrant and nonimmigrant visa systemfor the 21st century. The DHS followed up by publishing a notice in the Federal Register on December 30, 2014 inviting responses to 18 questions relating to visa modernization. We responded in great depth to 2 of the 18 questions as they relate to what we have been advocating for several years to administratively fix the immigration system though big picture and out of the box ideas. Our ideas are also included in the more expansive comments provided by the Alliance of Business Immigration Lawyers, and we salute all of the lawyers who were part of the comment team and who came up with the most innovative suggestions to modernize the visa system. We hope not without reason that this is not an exercise in futility, and that the DHS will seriously consider our ideas and those of our colleagues, including the weighty comments from the American Immigration Lawyers Association and other stakeholders in the immigration advocacy community. There is no escaping the fact that our visa system designed decades ago to accommodate much less sustanined and far lower levels of migration urgently needs to be brought into alignment with 21st century needs and challenges. If Congress is unable or unwilling to reform the system, it is incumbent upon the Administration to find ways to reinterpret provisions within the existing INA to ensure that we have an immigration system that can help US employers remain globally competitive and that can attract the best talent to our shores. It remains to be seen whether all the wonderful ideas in the Supporting US High Skilled Business and Workers memo will ever see the light of the day. One way for the Administration to demonstrate that it means what it says is to promptly promulgate the rule that would allow H-4 dependent spouses to work. This rule was proposed in May 2014, and it is about time for the rule to be finalized. If the H-4 rule is still pending approval from the powers that be within the governmental bureaucracy, one wonders how much longer would it take for the DHS to lengthen the time period for STEM Optional Practical Training or establish a parole policy to attract entrepreneurs into the US.
Chief of the Regulatory Coordination Division
USCIS Office of Policy and Strategy
20 Massachusetts Avenue NW
Washington, DC 20529-2140
Re: Notice of Request for Information: Immigration Policy
79 Fed. Reg. 78,458 (December 30, 2014)
Docket ID: USCIS-2014-0014
Dear Ms. Dawkins:
5. What are the most important policy and operational changes that would streamline and improve the process of applying for adjustment of status to that of a lawful permanent resident while in the United States?
We propose that aliens caught in the employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140, Form I-130 or Form I-526. The EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose. The current priority date system has become a de facto national origin quota perpetrating a continuing injustice against China and India. Rather than regulating immigration, it now serves to prevent it, making the opportunity to migrate permanently to the United States a cruel joke and frustrating the objective of geographic neutrality that we all thought had been achieved by enactment of the Immigration Act of 1965.
Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences, and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization. We acknowledge that INA §245(a)(3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant, and this would need a Congressional fix. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed nor is there any indication that Congress preferred or mandated this intepretation. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to §245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. §245.1(g)(1), which provides:
Under 8 C.F.R. §245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.
We propose the following amendments to 8 C.F.R. §245.1(g)(1), shown here in bold, that would expand the definition of visa availability:
An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
Once 8 C.F.R. §245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), we propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:
9 FAM 42.55 PN1.1 Qualifying Dates
15. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provides for an intends to be issued each year going forward?
Unitary Counting of Derivatives
A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.
We do not claim that derivative beneficiaries are exempt from numerical limits. As noted above, they are indeed subject in the sense that the principal alien is subject by virtue of being subsumed within the numerical limit that applies to this principal alien. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is, then, a profound difference between not being counted at all, for which we do not contend, and being counted as an integral family unit rather than as individuals. For this reason, INA §201(b) simply does not apply. We seek through the simple mechanism of an Executive Order not an exemption from numerical limits but a different way of counting them.
Expansion of Parole in Place
Achieving Something Close to Comprehensive Immigration Reform Under the INA
Cyrus D. Mehta
 See e.g, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, http://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html; The Family That Is Counter Together Stays Together: How To Eliminate Immigrant Visa Backlogs, http://blog.cyrusmehta.com/2014/09/the-family-that-is-counted-together.html; Do We Really Have To Wait For Godot?: A Legal Basis For Early Filing Of An Adjustment Of An Adjustment of Status Application, http://blog.cyrusmehta.com/2014/08/do-we-really-have-to-wait-for-godot.html
 Policy Memorandum, Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i), PM-602-0091, November 15, 2013.