Monthly Archives: March 2012

Citizens of Syria in the U.S. Now Eligible for Temporary Protected Status (TPS)

Conflict in Syria, as its citizens continue to rise up against President Bashar al-Assad and his Ba’ath Party rule, has led the U.S. government to deem the country unsafe for return by nationals currently living in the United States.

Janet Napolitano, Secretary of Homeland Security, announced on March 23rd that Syria would be designated for Temporary Protected Status. (See Napolitano’s announcement.) TPS is not a permanent right to remain in the U.S., but offers temporary rights to remain and to work, up to a specified deadline — in this instance, through September 30, 2013.

What this means in practice is that, if you’re a Syrian national currently in the U.S., have been residing here continuously since the designation date (March 29), and are not ineligible due to security, criminal, or other grounds of inadmissibility, you can avail yourself of TPS protection by registering with U.S. Citizenship and Immigration Services (USCIS). You will receive a work permit.

Go to the Temporary Protected Status page of the USCIS website for details.

Nearly 10% of Immigrant Removal Cases Being Closed Based on Prosecutorial Discretion

It’s no secret that the agency responsible for immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE), does not have the time or resources to deport or remove every undocumented or otherwise deportable immigrant who lives in the United States. So, it must set enforcement priorities — in other words, figure out who, or what type of foreign national, should be at the top of its list for arrest and removal. The rest, the agency routinely overlooks.

This policy leaves plenty of room for inconsistency and for concentration of agency resources on people who aren’t doing any harm in the U.S. — who may in fact have close family or other ties here. That’s why the policy was clarified and adjusted in a June 17, 2011 memo by ICE Director John Morton.

The Morton memo recommended that ICE agents exercise discretion by focusing mainly on cases where the undocumented or deportable immigrants have a criminal record or are otherwise threats to public safety — and to give a break to upstanding immigrants with strong or longstanding ties to the U.S., who contribute to their community.

In particular, the memo recommended giving consideration to people who arrived in the U.S. as children, are successfully pursuing advanced degrees or have graduated from U.S. high schools, have served in the U.S. military, whose removal from the U.S. would split up a family, and so on. By extension, the memo offered a possible way for gay and lesbian partners of U.S. citizens, who are not eligible for a green card based on marriage, to avoid deportation.

What does this new policy mean, in practical terms? It’s not an amnesty, nor a way for undocumented immigrants to apply for a green card. What it does mean is that not only should ICE agents stop arresting people who are low on the priority list, but the Department of Homeland Security (DHS) will close active cases in the immigration court system that fit the new guidelines. The cases will be put on pending, inactive status — essentially placing the person in limbo.

Implementation of this policy has itself been a bit inconsistent. However, reviews of immigration court cases under the new policy has begun. And according to a recent report by Ben Winograd, called “Crunching — and Clarifying — the Numbers on Prosecutorial Discretion,” 13,000 of the 165,000 cases reviewed so far were found eligible for a favorable exercise of prosecutorial discretion– though proceedings have not yet been suspended in all these cases. (The need for background checks may be creating a holdup.)

Clearly, this area of  immigration policy is still developing, and we are likely to see more adjustments — and possibly opportunities — as it does so.

News Regarding Work Permits for H-1B Spouses Not So Great After All

As I mentioned in an earlier entry (called “Great News for F-1 and H-1B Visa Holders,”) DHS has announced plans to allow H-4 spouses to work in the U.S., during the time that the H-1B visa holder is awaiting action on an adjustment of status (green card) application, and after a “minimum time spent in the U.S.”.

Thanks to Gary Endelman and Cyrus Mehta, we have a bit more information about that “minimum time.” Their column, “Working: H-4 Spouses Get to Take a Step Forward, But Is It a Giant One?” reveals that the government is requiring that H-1B holders have already received an extension of their stay in order for the spouse to qualify for a work permit (EAD) — in practical terms, that the H-1B holder have already been in the United States for six years.

As happens so often, we can describe the immigration rules, but we can’t explain the logic behind them. As Endelman and Mehta point out, nothing in the underlying immigration laws actually prohibits H-4 spouses from working in the first place. This is all a matter of agency “interpretation” (though I’d prefer the word “overthinking”).