Tag Archive for: Nonimmigrant Status

Granting Deferred Action to Aging Out Children in Lawful Status Is Preferable to Having Them Start All Over Again

By Cyrus D. Mehta

Children of beneficiaries of approved I-140 petitions that are caught in the employment-based backlogs are in danger of aging out if they turn 21 and are unable to obtain permanent resident status with their parents. Although the Child Status Protection Act (CSPA) is able to protect the age of some children from aging out, not all children can benefit from the CSPA especially when neither the Date for Filing or the Final Action Date in the State Department Visa Bulletin is nowhere close to becoming current with respect to the I-140 petition filed on behalf of the parent. Indian born beneficiaries in the employment based first, second and third preferences are particularly impacted as the wait time before their priority dates become current can be an absurd  195 years. Over one million Indian born beneficiaries and their dependents will be waiting for the rest of their lives in the backlogs.

Although Congress can easily fix this problem by infusing more visa numbers in the employment-based categories along with reducing the per country limits, due to the intense polarization between the two parties and the obsessive focus on the border, those in Congress who desire to fix the problem are unable to get support to pass meaningful legislation.  On June 13, 2024, a bipartisan group of 43 members of Congress sent a letter  to Homeland Security Secretary Alejandro Mayorkas and U.S. Citizenship and Immigration Services Director Ur Jaddou requesting an administrative fix for children who will age out.

The letter requests three policy changes as follows:

First, “Clarify the applicability of potential grants of deferred action on a case-by-case basis, where discretion is warranted, for children of long-term visa holders who age out of status.”

Second, “Expand eligibility for Employment Authorization to child dependents of visa holders, and to individuals with approved I-140 petitions.” The letter also urges USCIS to expand eligibility for employment authorization (an EAD) under “compelling circumstances” to include “children who are aging out.”

Third,We urge USCIS to create a process to allow children of long-term visa holders who have aged out to seek parole on a case-by-case basis, if warranted for urgent humanitarian reasons or to advance a significant public benefit.”

My views on this bipartisan letter have been extensively reflected in an article in Forbes written by Stuart Anderson of the National Foundation for American Policy, which are extracted below:

“The administrative proposals are both interesting and intriguing as they may only give a temporary benefit to the child who has aged out with no pathway to permanent residence,” said immigration attorney Cyrus Mehta. “Still, until Congress provides a legislative solution, these proposals, especially the first and second, would be an interim solution.”

A child granted deferred action can remain in the United States and obtain employment authorization. “The big disadvantage under this proposal is that once the parent had been granted permanent residence, what happens to the child?” said Mehta. “The child will have to remain a recipient of deferred action for a very long time until they can obtain their own basis to immigrate to the U.S.” A new presidential administration could rescind the deferred action, leaving an aged-out child in a situation similar to DACA recipients.

On the letter’s second proposal, Mehta explains while it would be good for dependent children to obtain EADs under compelling circumstances, “Children who age out and cannot protect their age under the Child Status Protection Act will not be able to obtain immigrant visas along with their parents.” A rule on the regulatory agenda that has not been issued would clarify and likely expand compelling circumstances for children at risk of aging out.

The letter also recommends granting employment authorization documents to the principal green card applicants waiting for permanent residence. “While granting EADs to beneficiaries of approved I-140s is a good thing, advocates should realize it will not lead to permanent residence if an individual changes jobs unless the new employer files the labor certification and I-140 again and the beneficiary is able to recapture the old priority date,” said Mehta. The child may not be protected from aging out depending on the circumstances.

The third proposal—being paroled into the United States—also does not offer a clear pathway to permanent residence. A future administration can choose not to extend parole. Depending on when a parent obtains permanent residence, sponsoring a son or daughter may be possible, although likely via consular processing.

While these proposals are less than ideal as they do not put aged out children on the path to permanent residence, an executive action that authorizes children to lawfully remain in the US long after they have aged out, and obtain work authorization and travel permission,  is preferable to the status quo.

Presently, a child who is turning 21 would most likely be in H-4 status while the parent who is caught in the backlog is in H-1B status. The child must seek to change status before turning 21 to another nonimmigrant status. Most children of skilled workers are studying in college, and so they can change to F-1 status. Requesting a change to F-1 status is fraught with peril. Changing to F-1 status is fraught with risk as  F-1  nonimmigrant classification requires one to have a temporary intent to remain in the US and ultimately return to a residence abroad, which has not been abandoned. It is difficult for a child in this situation who has been in the US for most of their life to demonstrate such a nonimmigrant intent. Furthermore, even if the child is successful in changing to F-1 status, travelling abroad is fraught with even greater risk as a US consul can deny the F-1 visa under INA 214(b), because the visa applicant has not overcome  the presumption of immigrant intent by sufficiently demonstrating that they  have strong ties to their home country that will compel them to leave the United States at the end of their temporary stay. H-1B and L visa applicants, along with their spouse and any minor children, are excluded from this requirement, but when the child has switched to F-1 status, they have to meet this requirement.

If this child was not born to an Indian born backlogged beneficiary, they would have obtained permanent residence along with the parent. Unfortunately, this child who has aged out  needs to start all over again in the labyrinthine immigration system like their parent has miserably experienced by first obtaining F-1 nonimmigrant status, then take their chance in the H-1B lottery. It is likely that most of them will not get selected in this lottery. If they are fortuitously selected, they can  seek an employer to sponsor them for permanent residency while not getting any credit for their parent’s priority date. They will need to establish a new priority date upon their employer sponsoring them for labor certification, and  filing an I-140 petition, and then they too will have to wait for more than a lifetime to obtain permanent residence unless they happen to marry a US citizen,  and get rescued from quotas  and file for adjustment of status.

Instead of stating all over again in F-1 status, if a child is granted deferred action, they are authorized to remain in the US and even work by applying for employment authorization. If the child wishes to travel, they can request advance parole. This is probably better than remaining in nonimmigrant F-1 status, and then trying to switch to H-1B status under the H-1B lottery. They will need to be a recipient of deferred action for a very long time until they get sponsored for permanent residence through an employer or as an immediate relative of a US citizen spouse or through a family member under one of the family preferences.

Although a new president can yank the deferred action, they will be more stable so long as they have deferred action rather than being thrown into vagaries of the US immigration system. They can also hope that at some point Congress will bless this executive action and provide a pathway for these children to apply for permanent residence and citizenship just as DACA recipients have been hoping and advocating for a long time.

Finally, I also favor advancing the “Dates of Filing” in the State Department Visa Bulletin as much as possible to allow those waiting in employment-based green card categories to file I-485 applications for adjustment of status. This action would enable individuals to obtain employment authorization documents, advance parole for travel purposes and protect the age of the child for an immigration filing.

 

 

 

 

 

Sanchez v. Mayorkas: Although TPS Is Not An Admission, Justice Kagan’s Opinion Leaves Open Avenues for TPS Recipients to Adjust Status as Nonimmigrants

By Cyrus D. Mehta and Kaitlyn Box*

On June 7, 2021, the Supreme Court decided Sanchez v. Mayorkas, holding that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. Though overall a disappointing decision, the Court’s opinion may nonetheless leave open some options for some TPS recipients who want to obtain their green cards.

Sanchez v. Mayorkas involved the plight of Jose Santos Sanchez, an El Salvadoran national who entered the United States without inspection in 1997 and was subsequently granted TPS based on a series of earthquakes in his home country. In 2014, Sanchez, together with his wife, Sonia Gonzalez, sought to adjust status after more than 20 years of residence in the United States, but the USCIS denied his application on the grounds that “[a] grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national”.

Sanchez challenged the denial, and the District Court ruled in his favor, holding that an LPR “’shall be considered as’ having ‘lawful status as a nonimmigrant’ for purposes of applying to become an LPR”. See Santos Sanchez v. Johnson, 2018 WL 6427894, *4 (D NJ, Dec. 7, 2018). The District Court further held that INA §244(f)(4) requires TPS holders to be treated “as though [they] had been ‘inspected and admitted.’” The Third Circuit, though, reversed, holding that “a grant of TPS does not constitute an ‘admission’ into the United States.” Sanchez v. Secretary U. S. Dept. of Homeland Security, 967 F. 3d 242, 252 (2020).

The Supreme Court, in an opinion authored by Justice Kagan, held that an individual who entered the United States without inspection is not eligible to adjust status under INA §245 by virtue of being a TPS recipient. The Court drew a distinction between the concept of “admission” and one’s immigration status, noting that there are several categories of individuals who have nonimmigrant status without having been admitted to the United States (alien crewmen, crime  victims in U visa status, etc.).

Though unfortunate that the Court did not consider a grant to TPS to be an admission under INA § 245(a), Justice Kagan’s opinion includes some interesting language that may leave open some avenues for TPS recipients to adjust status. On pages 8-9 of the opinion, the Court held that TPS recipients will be considered to have nonimmigrant status, which is needed to adjust status under §245. Thus, an individual who was admitted to the United States in lawful B-2 status for example, but fell out of status before being granted TPS might be able to adjust status, having satisfied both the “admission” and “nonimmigrant status” requirements.

Thus, it is unclear whether a grant of TPS “wipes out” a lapse in one’s nonimmigrant status, no matter the duration. Justice Kagan gives the more narrow example of an individual who was out of status for a few months before receiving TPS, potentially implying that TPS ends an individual’s time out of status who otherwise would have exceeded 180 days and been unable to adjust under INA § 245(k). However, a noncitizen relying on §245(k) to adjust status would not need to have received TPS, or any other nonimmigrant status, to file an employment based I-485 within 180 days of admission.  On the other hand, INA §245(k) could still potentially come to the rescue if the individual is granted TPS status within 180 days of the admission but then seeks to file for adjustment of status 180 days after the admission. The grant of TPS would have put the person back in nonimmigrant status within the 180 days from the admission, even if they file an adjustment application after 180 days.

Justice Kagan’s opinion can be interpreted even more broadly to support the idea that a grant of TPS “wipes out” a lapse in the nonimmigrant status and thus overrides INA §§§ 245(c)(2), (7) and (8), when the lack of a lawful status impedes an individual’s ability to adjust status. Under INA §245(c)(2) an applicant for adjustment of status even if admitted (other than an immediate relative) is precluded from applying for adjustment of status if they are in unlawful status at the date of filing the application or who have failed to maintain continuously a lawful status since entry into the US. INA § 245(k) allows one who was admitted to apply for adjustment of status under the first three employment-based preferences and the employment-based fourth preference as a religious worker if they have failed to maintain lawful status for not more than 180 days. But INA § 245(k) is inapplicable to one who is applying for adjustment of status under a family-based preference.  A grant of TPS at any point in time, if Justice Kagan’s opinion is interpreted broadly, should once again render an applicant eligible for adjustment of status whether they are filing an adjustment application under a family based preference or  an employment-based preference even 180 days beyond the admission and the grant of TPS.

INA § 245(c)(7) similarly precludes adjustment of status to that of an immigrant under INA § 203(b) (the five employment-based preferences) for one who is not in a lawful nonimmigrant status. A grant of TPS ought to wipe out this impediment. INA § 245(c)(8) disqualifies one from adjusting status who accepted employment while unauthorized. Under the broader interpretation of Justice Kagan’s opinion, the grant of TPS ought to also remove this impediment under INA § 245(c)(8) too.

While the Supreme Court nixed the ability of TPS applicants to adjust status if they were not admitted, there are still some bright spots if one carefully parses through Justice Kagan’s opinion. Under the broadest interpretation of Justice Kagan’s opinion, TPS applicants, if they were initially admitted, should continue to claim that they are eligible to adjust status under both the family and employment preferences by virtue of receiving nonimmigrant status.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

Extending Visitor Visa Status During Covid-19 and after the Birth Tourism Rule

Visitors who have been admitted in B-2 visa status may extend their status while in the United States. Even if a visitor has a multiple entry visa in the passport for a duration of ten years, the visitor is admitted into the US for a more limited time at a port of entry, which is generally a period of six months in B-2 status.

Since the COVID-19 pandemic, many visitors have sought to extend their status as flights are not yet plying to their home country or they may wish to avoid flying out of fear of contracting the infection. Some countries have put restrictions on travelers from the US. A request to extend B-2 status may be made by filing Form I-539 pursuant to 8 CFR 214.1(c)(1) either electronically or through a paper-based application. Although this blog’s focus is on filing an extension for B-2 status, it is also possible to change from another nonimmigrant status to B-2 status pursuant to 8 CFR 248.1. Many nonimmigrants in H-1B or L status who have lost their jobs due to the economic downturn caused by Covid-19 have had to resort to changing to B-2 status due to non-availability of flights to their home country. Note that one who was admitted under the Visa Waiver as a visitor for 90 days is not eligible for filing for an extension of status, although a Visa Waiver entrant may apply for a 30 day extension directly wither with USCIS or CBP called Satisfactory Departure.

In order to be eligible to request an extension of B-2 status or a change to B-2 status, it is important for the applicant to have maintained her current nonimmigrant status. If the visitor has engaged in unauthorized employment, he will be ineligible to request an extension of status. Although the extension or change of status request must be filed timely, the USCIS has authority to exercise its discretion in excusing an untimely filing based on extraordinary circumstances beyond the control of the applicant. The applicant must also demonstrate that she has not otherwise violated nonimmigrant status, continues to remain a bona fide nonimmigrant and is not the subject of removal proceedings. The USCIS has indicated that it will consider late filings caused as a result of Covid-19. See 8 CFR 214.1(c)(4) for authority for excusing untimely filings for extensions of status and 8 CFR 248(b) for excusing untimely filings for change of status.

There are very harsh consequences if the applicant overstays the terms of his stay in the US. Overstaying one’s visa results in the automatic voidance of the multiple entry visa on the passport under INA 222(g). Overstaying beyond the expiration of the nonimmigrant status, governed by the I-94, for more than 180 days results in a 3-year bar against re-entry under INA 212(a)(9)(B)(i)(I). Furthermore, overstaying the visa for more than one-year results in a 10-year bar against re-entry under INA 212(a)(9)(B)(i)(II). Therefore, ensuring that the I-539 is timely submitted (of if not timely submitted, it is at least excused by USCIS) will toll the accrual of unlawful presence, and thus avoid the triggering of automatic voidance of the visa stamp or the accrual of unlawful presence that will result in the 3- or 10-year bars to reentry into the United States.

At the time of submission, Form I-539 must be accompanied by evidence that the reason for the extension is consistent with the purpose of the visitor visa, and the visitor continues to maintain a residence in the home country as well as ties with that country. It is also strongly recommended that a sworn statement is included that clearly indicates the need for the extension and the change of intention since the initial admission to stay longer, along with an I-94 printout and other evidence of financial sufficiency and support. A Form I-134, Affidavit of Support, may also be submitted to bolster the evidence of financial support. The new public charge rule took effect on February 24, 2020 and applies to extension and change of status requests. The USCIS will consider whether an applicant seeking an extension of stay or change of status has received, since obtaining the nonimmigrant status she seeks to extend or from which he or she seeks to change, public benefits for more than 12 months, in total, within any 36-month period, such that, for instance, the receipt of two benefits in one month counts as two months.  Among the prohibited benefits is federally funded Medicaid, although Medicaid funding for an emergency medical condition will not be considered, which includes emergency labor and delivery. Noncitizens regardless of status are eligible to receive Medicaid for an emergency medical condition. See 42 CFR 440.255A. Form I-539 has new sections that require applicants to check off whether they have accepted prohibited benefits.

Notwithstanding the Medicaid exception for emergency medical conditions, including pregnancy and birth, applicants have to be very careful regarding applying for extensions based on health reasons, especially relating to pregnancy and birth. The Trump administration has amended the definition of visitor for pleasure at 22 CFR 41.31(b)(2) to prohibit so called birth tourism. The original version of this rule, before it was amended on January 24, 2020, defined “pleasure” as stated in INA 101(a)(15(B) “to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” Now 22 CFR 41.31(b)(2)(i) includes the old definition for pleasure but adds that the term “pleasure” does not include obtaining a visa for the primary purpose of obtaining US citizenship for a child by giving birth in the United States. The new rule at 22 CFR 41.31(b)(2) is reproduced in verbatim below:

(i) The term pleasure, as used in INA 101(a)(15)(B) for the purpose of visa issuance, refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature, and does not include obtaining a visa for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.

(ii) Any visa applicant who seeks medical treatment in the United States under this provision shall be denied a visa under INA section 214(b) if unable to establish, to the satisfaction of a consular officer, a legitimate reason why he or she wishes to travel to the United States for medical treatment, that a medical practitioner or facility in the United States has agreed to provide treatment, and that the applicant has reasonably estimated the duration of the visit and all associated costs. The applicant also shall be denied a visa under INA section 214(b) if unable to establish to the satisfaction of the consular officer that he or she has the means derived from lawful sources and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others.

iii) Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.

President Trump has always intended to abolish birthright citizenship even though it is protected under the Fourteenth Amendment of the US Constitution. Knowing fully well that the abolition of birthright citizenship would require a constitutional amendment, the Trump administration quietly amended the State Department regulation as a step towards discouraging pregnant women from entering the US to give birth to children who then automatically become US citizens. While birthright citizenship has advantages, and abolishing it will be a bureaucratic nightmare as it may be applied retroactively (see Why Birthright Citizenship is so Wonderful for America), visa applicants now have to confront needless scrutiny while applying for a tourist visa. A pregnant person may be denied a visa even if the primary goal is not to give birth to a child in the US for the purpose of conferring US citizenship. The applicant may wish to seek the best medical care for a potentially complicated pregnancy, or may be more comfortable with a doctor and hospital facility in the US than in her own country. An applicant may be travelling purely for business or a holiday and intending to return to her home country to give birth, and could still be denied the visa. Even if the applicant wishes to seek a visa for pursuing medical treatment, even if it is not associated with pregnancy and birth, the rule now requires a demonstration that the applicant will be able to pay for the costs of the medical treatment, and has the ability to pay for them through lawful sources.

Although 22 CFR 41.31(b)(2) applies to a visa issuance at a US Consulate, the USCIS would also likely refer to it when applying for an extension of status even though an applicant previously was issued the B-2 visa at the US consulate. The USCIS routinely issues a Request for Evidence (RFE) asking for further evidence of ties with the home country and financial sufficiency after a request for an extension if filed. An extension request based on medical reasons will result in more scrutiny as a result of 22 CFR 41.31(b)(2). This author has seen RFEs asking for a detailed letter from the applicant’s physician regarding the medical condition, the prescribed treatment and its duration, the physician’s opinion on the applicant’s ability to travel, and the availability of similar treatment in the applicant’s home country. The RFE may also ask for the stated reason for the trip when applying for the B-2 visa at the US Consulate. If the applicant was already suffering from symptoms of the medical condition, the RFE may question whether this was disclosed to the Consular Officer, and if not, an explanation for why the applicant did not disclose the possibility of her seeking treatment in the US. The RFE may also demand extensive proof of financial ability of the applicant to pay the medical bills. Finally, the RFE will also ask for proof of foreign residence when the applicant departs the US.

The timely filing of the I-539 application tolls the accrual of unlawful presence for purposes of the 3- and 10-year bars to reentry into the US if the applicant stays beyond the expiration of the validity date on the I-94. If the I-539 remains pending beyond the requested date, as the request can be made for up to 6 months, another I-539 application must be filed before the date the first extension if granted would have expired even if there has been no decision on the first I-539. The applicant may, however, depart the US during the pendency of the I-539 application. If the application is denied, there is no right of appeal, although the applicant may request a motion to reopen or reconsider. Requesting a reopening or reconsideration will not toll unlawful presence for purposes of the 3- and 10-year bars. If the extension is granted, it is imperative that the applicant depart the US timely prior to the expiration of the extended date. While there is no limit in seeking additional extensions, the USCIS will take issue with immigrant intent.

Finally, even if all goes well and the applicant timely departs the US, the Consular Officer could still question why the applicant sought an extension at the time of next applying for a renewal of the B-2 visa at the US Consulate. Given all the risks and pitfalls, one should avoid seeking an extension or change of status to B-2 unless it is truly necessary and made in good faith.

(This is blog is for informational purposes only, and should not be viewed as a substitute for legal advice)