Temporary Protected Status Extended For El Salvadorans

USCIS announced that the temporary protected status extended to certain aliens from El Salvador who are residing in the United States has been extended for an additional 18-month period. TPS has been available to certain Salvardorans residing in the U.S. since a series of earthquakes hit the country more than 10 years ago. The 60-day registration period for the TPS benefit is open from January 9, 2012 to March 9, 2012. Persons eligible for TPS designation who would otherwise be deemed unlawfully present are allowed to remain in the U.S. and obtain temporary work authorization through September 9, 2013. TPS is not a substitute for permanent resident status in the United States.

Persons who are already registered are permitted to re-register and extend their employment authorization. If you are an El Salvador national who has never registered for the TPS benefit, you should inquire with an attorney to determine if you may be eligible to enroll for the benefit as a late registrant. Persons eligible for late registration include the following persons who would have been eligible originally, including:

• Nonimmigrants or persons who have been granted voluntary departure status or any relief from removal;
• A person who has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;
• The Applicant is a parolee or has a pending request for reparole; or
• The applicant is a spouse or child of an alien currently eligible to be a TPS registrant.

Supreme Court Ruling Provides Relief For Some Otherwise Deportable Permanent Residents

An incongruous application of a statutory provision allowing the Board of Immigration Appeals (BIA) to grant discretionary relief to lawful permanent residents who had been convicted of deportable crimes meant that relief available to lawful permanent residents who had departed the country and placed in removal proceedings upon re-entry was not always available to some convicted LPRs placed in removal proceedings while still in the United States. The Supreme Court in Judulang v. Holder struck down the BIA's rule for granting § 212(c) relief only if the Department of Homeland Security (DHS) charged them with a ground of deportability that had a comparable ground of inadmissibility. Instead, a unanimous Supreme Court will require the BIA to adopt a new rule that is not "arbitrary and capricious."

There are two categories of lawful permanent residents who could be affected by this ruling:

1. LPRs charged with deportability based on a pre-1996 guilty plea that also triggers inadmissibility. A person charged with an aggravated felony (crime of violence), for example, may have been able to obtain relief from inadmissibility under the former rule applied by the BIA but would not have been eligible for relief for the same crime in a deportation proceeding. Presumably, a new approach would allow the same treatment of the deportable LPR as the inadmissible LPR.

2. Individuals charged with deportability based on a pre Judulang should allow LPRs to apply for §212(c) discretionary relief for criminal convictions that are not excludable offense but are grounds for deportation.

As a consequence of the Judulang decision, individuals currently in removal proceedings may now request §212(c) relief. Cases already on appeal could be remanded to an immigration court for a §212(c) hearing. Those with final orders may be able to have their cases reopened or reconsidered based on the Judulang decision.

Revised Waiver Process Will Benefit Unlawfully Present Spouses And Children

USCIS this week announced proposed rule changes that would eliminate the requirement that unlawfully present spouses of U.S. citizens and their children depart the United States to adjust to lawful permanent resident status and await adjudication of their hardship waiver before they can be reunited with their U.S. citizen spouses. Under the proposed rule change, unlawfully present spouses and their children will be allowed to remain in the U.S. while they apply for a provisional waiver of their unlawful presence. If the provisional waiver is granted, the spouse and their children will then depart the U.S. to apply for their immigrant visa abroad, which will allow them to return to the U.S. after a much shorter period of time. This change will avoid the disruption that these families suffer from lengthy wait periods they currently experience while waiting for approval of a waiver of their unlawful presence in the U.S. The American Immigration Lawyers Association spoke of the benefits of this rule change to countless numbers of families:

"Although this is just a small part of dealing with the dysfunction of our immigration system, it represents a significant change in process for many individuals," said Eleanor Pelta, president of AILA. "It's a move that will be less destructive to families and bring about a fairer and more streamlined waiver process. Right now people who have accumulated unlawful presence in the U.S. who leave the country to apply for a green card have to wait abroad, often for months or years.

"This adjustment to the rule is important," Pelta added, "because it will literally save lives. Unfortunately, most waiver applications are filed in Ciudad Juarez on the U.S.-Mexico border, an extremely dangerous city these days, and more than one applicant has been murdered or seriously harmed while waiting there."

In 2011, USCIS processed about 23,000 hardship waiver applications, more than 70% of which were approved. The waivers allow aliens who have accumulated unlawful presence in the U.S. to avoid three and ten-year time bars on their re-entry into the U.S. following their departure to apply for an immigrant visa. Despite the high approval rate, many unlawfully present spouses decide against applying for an immigrant visa because of the many months and sometimes years they are forced to wait outside the U.S. while their hardship waiver is being adjudicated. The emotional strain from the long separation and the fear of their waivers being turned down leads millions of unlawfully present aliens, who would otherwise be eligible to become legal permanent residents, remaining in the U.S. in an unlawful presence for many years. Some critics have accused the Obama administration of changing the rules to provide "backdoor amnesty" to millions of illegal aliens. The proposed rule change, however, will only benefit family members of U.S. citizen spouses.

A USCIS announcement explains how the proposed process for obtaining hardship waivers will differ from the current process:

Currently, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the U.S., that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed. The proposed process does not change the requirements for obtaining a visa or the standards for obtaining a waiver. Nor does it change the requirement that the spouse or child of a U.S. citizen ultimately depart the United States to have his or her visa application processed at a consulate abroad. The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications. Currently, applicants can only file for a waiver after having been determined inadmissible by the U.S. consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case. The proposal limits the extent to which the process forces the lengthy separation of families.  

The proposed rule change will be published in the coming months. Applications for provisional waivers issued stateside will not be accepted until a final rule is published, hopefully later this year.