Employment Pathways to Permanent Residence for Humanitarian Parolees
Session Introduction
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Introduction of Speakers
Today's session: Focuses on employment pathways to permanent residence for humanitarian parolees, addressing critical avenues for legal status.
Heather Draback Prendergast: Discussion leader on the AILA board of governors, providing expert guidance and insights.
Wendy Hess: Partner at Landau Hess Simon Choi & Jobly, specializing in employment law and offering extensive experience in the field.
Camille Becker: A solo practitioner in Oakland, California, focusing on options for GPS, DACA, and humanitarian parole beneficiaries, providing specialized legal support.
Introduction and Objectives
The primary goal is to provide detailed information on employment-based remedies for vulnerable individuals with DACA or GPS, enhancing their legal prospects.
These remedies aim to provide more secure status, including opportunities for nonimmigrant visas and green cards, ensuring long-term stability.
Key statutes to understand:
: Outlines adjustment of status provisions.
: Specifies bars to adjustment of status.
: Details waivers for certain violations in adjustment of status applications.
Four-Part Framework for Analysis
Is changing nonimmigrant status within The US an option?
INA requires lawful admission and continuous maintenance of nonimmigrant status, essential for eligibility.
TPS is the only status that confers status per se, granting a specific legal standing.
Example: A DACA beneficiary lacks admission or status and therefore cannot change status through this route.
Example: A TPS beneficiary, if admitted and in status, may be eligible for a change of status depending on other potential bars.
Example: A parolee does not have an admission and is not in status, disqualifying them from changing status.
Important terms: Define the legal requirements of being "admitted" and having a recognized "status."
A lawful entry with subsequent TPS approval may allow for a change of status if there are no other inadmissibility issues, particularly beneficial for recent TPS beneficiaries like Venezuelans.
Can I adjust status to green card status inside the country?
Exploring the possibilities and requirements for adjusting to a green card while within the U.S.
Can I consular process a nonimmigrant visa?
Assessing the option of obtaining a nonimmigrant visa through consular processing.
Can I consular process an immigrant visa?
Determining the feasibility of securing an immigrant visa through consular processing.
Changing Nonimmigrant Status within The US
When considering change of status, prioritize individuals with TPS, as it provides a recognized legal status.
H-1B visas often present a viable option, especially for those with specialized skills or occupations.
Identify potential disqualifying factors, such as existing removal orders that could impede the process.
Nonimmigrant intent is typically required for most nonimmigrant categories, except for H-1B and L visas, which allow for dual intent.
Be aware of the implications of the three and ten-year bars when evaluating consular processing options.
Example: A Venezuelan who entered legally on a B-2 visa 20 years ago, obtained TPS, and has remained in The United States likely faces challenges in changing to a nonimmigrant status due to not maintaining their initial nonimmigrant status.
Maintaining status facilitates the transition to an H or L visa, as these categories accommodate dual intent.
Changing to an F-1 visa can be problematic with TPS due to the need to demonstrate nonimmigrant intent, potentially conflicting with the desire to remain in the U.S. long-term.
Evaluate the individual's immigration history, family ties, and conditions in their home country to substantiate sufficient nonimmigrant intent.
Adjustment of Status
INA mandates lawful admission or parole for adjustment of status eligibility.
INA restricts adjustment for those who have engaged in unauthorized employment or violated their status, unless specific exceptions apply.
If adjusting based on an immediate relative (US citizen spouse), only meeting the requirements of is necessary.
A DACA recipient who obtains advance parole and returns may adjust status if the petition is based on an immediate relative.
For non-immediate relatives, the provisions of are applicable, adding complexity to the adjustment process.
INA provides a waiver for bars if the applicant has no more than 180 days of unauthorized work or status violations since their last admission.
A DACA recipient returning on advance parole is not considered to have a new "admission," thus not benefiting from protection.
However, as of 07/01/2022, TPS beneficiaries who travel on advance parole and return are considered to have an admission, as confirmed in footnote 63 of the USCIS policy manual.
Case example: Before a Supreme Court ruling, the Ninth Circuit considered the grant of TPS as an admission, enabling practitioners to adjust TPS beneficiaries for permanent residency within the country.
Alternative Considerations
Explore alternative routes to adjust status that do not require status or lawful admission, such as those available under VAWA or through U visas, providing broader opportunities.
Addressing Questions
Question: A Venezuelan entered with a B-2 visa, applied for asylum while in status, and later received TPS. Their passport has expired, and travel is not feasible. Can they adjust status?
Refer to Matter of LK (BIA, 2004), which supports an exception if the lack of status is due to technical reasons or circumstances beyond their control. Success depends on the jurisdiction and the presiding judge.
A USCIS policy memorandum from 07/01/2022 rescinds Matter of ZRZC concerning authorized travel by TPS recipients, impacting related interpretations.
Question: What are the considerations for changing status to an O-1 visa (quasi-dual intent)?
While not as strong as an H or L visa, it is still a viable option. Approvals have been seen even with pending adjustment of status applications.
Question: Given its temporary nature, why is it challenging for a TPS holder to demonstrate nonimmigrant intent?
Assess conditions in their home country to determine the likelihood of a temporary return.
Consider if the person has strong ties to countries other than their home country.
Avoid consular processing with NIVs other than H or L without fully advising clients of the potential risks involved.
Consular Processing
For individuals ineligible for a change of status or adjustment, consular processing (CP) offers an alternative pathway.
*Before pursuing CP, thoroughly vet the client for any potential inadmissibility issues that could complicate the process.
Can we consular process an H or an L, or can we consular process an I-140 petition?
The INA waiver can mitigate many grounds of inadmissibility, excluding terrorism-related concerns.
For beneficiaries of TPS, DACA, and humanitarian parole, remain vigilant about triggering unlawful presence bars.
*If an individual was arrested at the border and provided a false name, does this constitute a material misrepresentation and what are the implications?
*Applying for advanced parole before traveling may protect against triggering unlawful presence bars under the Arrabelli and Yaribelli interpretations.
*Argument 1: Advanced parole can be used to argue that no unlawful presence bars were triggered upon departure.
*Argument 2: Present a waiver, requesting consideration based on these circumstances.
*Argument 3: (Especially for DACA recipients) request expedited processing of the case.
Submitting an expedite request can help expedite the review process.
*If administrative processing becomes excessively prolonged (3-7 months), consider requesting the return of the passport.
Important Considerations
Two officers, one from the Visa office and one from CBP, will independently review the application, ensuring thorough scrutiny.
Consult with colleagues or listservs to gather insights on how specific consulates handle these types of cases.
Consulates may enforce strict documentation requirements; therefore, presentations should be succinct and well-organized.
Understanding the operational practices of the specific consulate is vital for effective consular processing.
Transition to Permanent Residence
A 2023 case, Duarte Gonzales, establishes that both illegal and legal entries can contribute to the accrual of the three and ten-year bars in The United States.
*Receiving a waiver may allow time spent in the U.S. to count towards satisfying these bars, even if the individual is out of status.
Congressional support can be a valuable asset in navigating complex cases.
Immigrant Visas (Green Cards)
Green cards generally offer more stability and benefits compared to nonimmigrant visas.
Immigrant visas cater to a broad spectrum of workers, including skilled, unskilled, and various other categories.
Through an I-140 petition, sponsorship is available for workers in diverse occupations, including those without formal degrees such as truck drivers and unskilled laborers.
The green card process typically involves filing PERM, submitting the I-140 petition, and completing consular processing.
*This process can span approximately 2-4 years from start to finish.
Anticipate potential future relative ties to evaluate eligibility for specific programs.
Key Points: DACA and humanitarian parole
Younger DACA recipients generally do not trigger unlawful presence bars, simplifying their consular processing cases, which also applies to humanitarian parole beneficiaries.
Initiate the PERM process promptly for eligible clients, considering the uncertain status of DACA and TPS programs.
Family Preference Categories
Individuals in family preference categories face similar challenges but are not eligible for the two forty five k subset.
Waivers might be available, necessitating a qualifying relative.
Evaluate potential future qualifying relatives, such as siblings competing for their parents' sponsorship.
Note the importance of , which may enable some individuals to adjust status without leaving the country.
Consider U Visas, VAWA, SIV, and C Visas as alternative options for eligible individuals.
Responses to Further Questions
Does advanced parole (Form I-512L) offer protection from unlawful presence similar to Form I-512T, and what about emergency travel authorization?
This hinges on whether it meets the criteria for admission for TPS beneficiaries; refer to the adjudicator's field manual for detailed guidance.
CLE Code
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