Small Steps Congress Can Take to Reform America’s Immigration System

Introduction

With roughly 10 million immigrants in the U.S. lacking legal status, policy leaders on both sides of the aisle broadly agree that something must be done to reform America’s broken immigration system.[1] This report presents nine commonsense recommendations that would offer relief to certain noncitizens residing illegally in the U.S. and allow for their thorough vetting by U.S. federal agencies. By taking small steps toward a more just immigration system, Congress can promote national and economic security for the benefit of the country as a whole.[2]

Which US Agencies Handle Immigration?

There are four federal departments that deal with immigration matters: the departments of Homeland Security, Justice, Labor, and State.

The Department of Homeland Security (DHS) was created in the aftermath of the 9/11 terrorist attacks.[3]Before its creation, immigration matters were primarily handled by a predecessor agency — Immigration and Naturalization Service — which was dissolved in 2003. With the establishment of DHS, immigration services were divided into three new agencies: Citizenship and Immigration Services (CIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).

In addition, the Justice Department operates a nationwide system of immigration courts that have judges and ICE prosecutors. These courts are civil in nature and hear matters regarding the deportation of noncitizens. The Labor Department handles matters regarding the employment of foreign workers, while the State Department handles matters for foreigners wishing to enter the U.S. with a visa or through a family or employer petition.

Which Laws Cover Immigration?

Immigration law is federal, meaning the same immigration laws apply throughout the country. The U.S. Constitution gives Congress absolute authority to regulate immigration matters as a matter of sovereignty.[4]The Supreme Court has recognized that various clauses of the Constitution give Congress the power to regulate immigration, including Article 2 and the commerce and naturalization clauses.

Historically, the Supreme Court has also held that Congress can delegate authority to administer immigration laws to the executive branch. The Immigration and Nationality Act of 1952 (INA) is the main law governing U.S. immigration procedures. The law, which has been amended several times, gives a great deal of authority to the executive branch to administer its provisions.[5]

This complex institutional and legal scaffolding can make the U.S. immigration system difficult for noncitizens to navigate. This report offers nine recommendations to address the noncitizen population living in the U.S. without legal status and improve the country’s immigration system:

1. Update the “registry” date in Section 249 of the INA.
2. Update the eligibility date in Section 245(i) of the INA.
3. Grant permanent residency to noncitizens with Temporary Protected Status (TPS).
4. Grant permanent residency to “Dreamers.”
5. Grant permanent residency to Afghans evacuated through Operation Allies Welcome.
6. Eliminate the three-year, 10-year, and permanent bars in the INA.
7. Raise the U visa cap to give relief to crime victims.
8. Eliminate the “sought-to-acquire” requirement in the Child Status Protection Act.
9. Create a presumption of hardship for cancellation of removal cases.

Recommendations

1) Update the INA’s “Registry” Date

Section 249 of the Immigration and Nationality Act is known as the “registry” provision. It allows a person who entered the U.S. before Jan. 1, 1972 to apply for permanent residency through CIS as long as they:

• Have maintained continuous residence in the U.S. since entering.
• Are not inadmissible to the U.S. on certain grounds, or are eligible for a waiver of inadmissibility or other form of relief.
• Are not ineligible for citizenship or deportable for engaging in terrorist activity.
• Are a person of good moral character.
• Are physically present in the U.S. at the time the application is filed.
• Merit the “favorable exercise of discretion.”[6]

Congress first implemented the registry through the Registry Act of 1929. The residency date requirement has been amended several times. It was most recently changed in 1986, when the cutoff year was updated to 1972.

Past data shows that very few noncitizens residing in the U.S. without legal status today entered the country before Jan. 1, 1972. As a result, most do not qualify for registry — and consequently, fewer than 1,000 noncitizens legalized their status in the 2010s under the registry provision.[7] As such, updating the registry’s eligibility date would allow many noncitizens living in the U.S. to apply for permanent residency and be vetted by CIS.

How can lawmakers change the registry date? Congress can amend Section 249 of the INA by simply passing a stand-alone bill. One such proposal, the Renewing Immigration Provisions of the Immigration Act of 1929, was introduced in the House by Rep. Norma Torres, a California Democrat, in March 2023.

Changing the registry’s eligibility date is the most straightforward way to vet and register millions of people living without legal status in the United States. For example, if Congress were to move up the registry date to 2015 or 2020, it would allow the majority of these noncitizens to apply for relief, be vetted by CIS through background checks, and obtain residency. It would also allow CIS to move to deport individuals who pose a threat to public safety or national security.

Consider how updating the registry date could change the lives of the immigrants in the following stories.[8]These profiles are real, although names have been changed.

1. Eduardo fled El Salvador following a series of earthquakes in 2001. He entered the U.S. illegally in 2002 when he was 18. He arrived too late to be eligible for U.S. immigration programs that were created to help Salvadorans fleeing natural disasters.
   
   Years passed, and Eduardo married a fellow Salvadoran who was also living in the country illegally. They had children, and Eduardo found work in the construction industry. He also became pastor of a small evangelical church.
   
   Eduardo wants to apply for legal immigration status. However, he does not qualify for any of the few relief programs that exist, and he fears he may eventually have to leave. If the registry date were changed from 1972 to 2015 or 2020, Eduardo could apply for relief and start the process of being vetted by CIS, which would determine if he was eligible for permanent residency. If his application was then approved, the U.S. could more fully benefit from Eduardo’s contributions to the country: his labor, taxes, church, and U.S.-born children.
    
2. Pierre entered the U.S. with a work-based visa in 2009. He obtained his visa for seasonal agriculture work so that he could process sugarcane for his employer in Florida. Before the visa term ended, Pierre’s employer laid him off and did not provide him with resources to return to his home country of Haiti. Pierre has lived in the U.S. ever since.
   
   Pierre enrolled in an English as a second language course at a church. In his neighborhood, he started a small restaurant that has become a hub for the Haitian-American community. It is so highly respected in the community that CIS has participated in stakeholder engagement meetings there.
   
   Pierre sends money to his family in Haiti, who live in poverty and face high levels of gang-based violence. Pierre knows he is currently ineligible for immigration relief in the U.S. and fears deportation. He also knows there is a low grant rate for asylum cases. If the registry date were updated to 2015 or 2020, Pierre could apply for relief, be vetted by CIS, and potentially be approved for permanent residency.
    
3. Tania was brought to the U.S. illegally from Mexico by her parents when she was 5 years old. She was too old to qualify for the Deferred Action for Childhood Arrivals (DACA) program when it was created. President Barack Obama created DACA through executive action to protect noncitizens who entered the U.S. illegally when they were young from deportation.[9] The program only allowed individuals who entered the U.S. before age 16 and were 30 or younger on the date DACA was created to apply.
   
   Tania was 31 when DACA was created, so she was ineligible for the program even though she entered the U.S. when she was 5 years old. Tania is married to a U.S. citizen who could petition for her, but the petition process would require her to leave the U.S. for a residency interview, and she must stay home to care for her disabled younger sister — who is a U.S. citizen. Tania’s spouse does not want her to risk leaving the country, and the family does not have the resources to hire a full-time caregiver for Tania’s sister. If the registry date were updated to 2015 or 2020, Tania could apply for relief without having to stop caring for her sister.
    
4. Mo is a community services liaison at his local police department. He works with crime victims. He knows that many of the crime victims he works with lack permanent legal status, and that many of these individuals are very afraid of being deported, despite his assurances that the police will not turn them over to ICE. It takes Mo quite a bit of time to establish trust within this community and persuade victims to help police investigate the crimes. Mo thinks that if Congress passed updates to the registry, it would help him and the police department establish trust with crime victims more easily, since it would enable many people in the community to apply for residency through registry. In that case, crime victims would not need to fear that helping the police would lead to their deportation.

As Section 249 states, a registry applicant must be a person of a good moral character and must not be inadmissible for reasons related to national security or on criminal or related grounds. By regulation, all registry applicants must have their biometric fingerprints taken by CIS, which uses the fingerprints to conduct background checks with various law enforcement agencies. If Eduardo, Pierre, Tania, or any of the crime victims Mo works with apply for registry and are found by CIS to pose a security risk, they will very likely be denied relief. This safeguard helps CIS begin the process of removing bad actors from the country.

2) Update the Eligibility Date in Section 245(i) of the INA

Section 245(i) of the INA contains a clause allowing certain noncitizens to apply to adjust their status with CIS. These applicants may stay in the U.S. to process their entire residency case upon payment of a penalty fee.

Like the registry provision, Section 245(i) has a cutoff date that increasingly few noncitizens in the U.S. without legal status can qualify for. To be eligible for status adjustment through Section 245(i), applicants must:

• Be the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001.
• Have been physically present in the United States on Dec. 21, 2000, if they are the principal beneficiary and the petition was filed between Jan. 15, 1998 and April 30, 2001.
• Currently be the beneficiary of a qualifying immigrant petition — either through the original Form I-130, by being grandfathered in through Form I-140, or through a subsequently filed immigrant petition — or an application for labor certification.
• Properly file 1) Form I-485, 2) the Application to Register Permanent Residence or Adjust Status, and 3) Form I-485 Supplement A.
• Pay a $1,000 fee, unless exempt.
• Be physically present in the United States at the time Form I-485 and Supplement A are filed.
• Have a visa immediately available to them.
• Be admissible to the United States or eligible for a waiver of inadmissibility or other form of relief.
• Warrant the “favorable exercise of discretion.”[10]

In some circumstances, a spouse or child of a grandfathered individual may also be grandfathered in under Section 245(i), or may be eligible to adjust status as a dependent.

To provide an avenue for more noncitizens to apply for status adjustment through Section 245(i), Congress can change the April 30, 2001 eligibility cutoff date. The date has already been extended once; when amending the INA with Section 245 (i) in 1994, Congress included an original 1997 cutoff date. This was eventually extended to April 30, 2001.

By updating this eligibility cutoff date, Congress can allow a substantial number of noncitizens living illegally in the U.S. to apply for relief, be vetted, and either obtain residency or be referred for removal.

Of special note is that CIS is a fee-based agency that receives approximately 97% of its budget from application fees.[11] If applying to adjust status under Section 245(i), applicants must pay a nonwaivable $1,000 penalty fee payable to DHS and CIS. If Congress advances the cutoff date, it would, importantly, reopen an avenue for relief that was closed in April 2001 — and also provide much-needed funding to CIS through the fees paid by applicants.

Consider how updating the eligibility cutoff date in Section 245(i) of the INA would impact the following people:

• Zahra entered the U.S. in 2002 with a visitor’s visa. She came to visit her brother, a U.S. citizen. During her visit, there was a coup d’état in her home country. Her family back home warned her not to return, so she stayed in the United States.
  
  Zahra’s brother filed a family petition for her in 2002. He inquired about the processing time for the petition and was told it would be over 15 years before Zahra could legalize her status through the petition he filed.
  
  After 15 years had passed, Zahra and her brother asked again about the petition. They were told the case was ready to conclude, but Zahra would not be able to have her residency interview in the U.S. because the petition was filed after April 30, 2001. Zahra is not grandfathered in under Section 245(i) and cannot apply for residency in the U.S. through the petition.
  
  Even though Zahra entered the U.S. with a visa, her status expired years before, and she is not the spouse, parent, or minor child of a U.S. citizen. She is not permitted to apply for residency while in the U.S. through her brother’s petition unless she is protected by Section 245(i) or has a visa — neither is the case. She can only apply for residency through her brother’s petition at the U.S. embassy in her home country.
  
  To complicate matters, Zahra is not eligible for the necessary waiver in her residency case because she does not have parents or a spouse who both are U.S. citizens or permanent residents and would suffer extreme hardship if her residency case were denied. If Zahra had entered the U.S. in or before December 2000, and if her brother had petitioned for her before April 30, 2001, Zahra would be able to apply for residency in the U.S. through his petition.

In the world of immigration, dates matter — profoundly so. With stories like these in mind, Congress should consider using Section 245(i) to provide temporary benefits to noncitizens who have family or employers who can petition for them immediately or have already done so. If Congress moved up the cutoff date for Section 245(i) and allowed noncitizens with a pending or approved petition to apply for deferred action, it would be a tremendous help for noncitizens facing very long wait times for their residency cases to be processed.

For another example, Indian nationals with certain employment-based residency cases may have to wait decades for their cases to be processed.[12] Any children they include in their application are certain to age out of the case. If Section 245(i) allowed noncitizens to apply for deferred action for themselves and their dependents in the U.S., then these families could also apply for renewable employment and travel authorization.

In Zahra’s case, this would allow her to apply for deferred action, and thus employment authorization, after her brother filed the family petition. CIS would be able to vet Zahra and continue to do so each time it took her biometrics, which Zahra would supply every time she applied to renew her employment authorization. If Zahra were to commit crimes during her case’s long processing time, CIS would not have to wait 10 or 15 years to discover them. They could keep tabs on her during the entire period of time her residency application was being processed and initiate removal proceedings against her upon discovering her criminal conduct. If Zahra stayed out of trouble with the police, then she could use the temporary benefits offered by CIS to support herself and contribute to society while her case was processed.

3) Grant Permanent Residency to Noncitizens With Temporary Protected Status (TPS)

Covered in Section 244 of the INA, Temporary Protected Status (TPS) is a temporary form of relief granted to nationals of specifically designated countries experiencing a natural disaster, war, or other situation that makes it unsafe for nationals to return. These countries are designated by the secretary of homeland security.

Countries are usually designated for TPS for periods of six to 18 months. During the time a country is designated, TPS beneficiaries may not be removed. They are eligible to remain in the United States and can apply for and receive authorization to work as long as they have protected status. TPS beneficiaries may also apply for and be granted travel authorization as a matter of discretion.[13] Today, approximately 610,000 noncitizens are beneficiaries of TPS, with President Joe Biden recently granting TPS to an additional 450,000 Venezuelans.[14]

Despite the name of the program, many noncitizens have been beneficiaries of TPS for decades. The TPS program for El Salvador, for example, has been in existence since 2001, meaning many Salvadoran beneficiaries have now been in the program for over 20 years. For most of that time, they have been required to reregister every 18 months and submit to a biometric screening — as they do when first applying for TPS — each time they reregister.

If Congress were to update the cutoff date for registry, it would surely apply to every Salvadoran, Honduran, Nicaraguan, and Haitian with TPS. The TPS program has very strict rules regarding eligibility as it relates to criminal offenses. Beneficiaries who get into trouble with the police find it impossible to reregister in the program and face removal from the U.S.

The vast majority of noncitizens with TPS work, get married, have children in the U.S., file income tax returns each year, attend church regularly, and are very involved in their communities.[15]

Congress can provide permanent relief to this group of noncitizens by passing new legislation or by updating the eligibility cutoff date for registry, which would achieve the same result. Consider the following example:

Juan came from El Salvador to the U.S. illegally in 1999. He was arrested by Border Patrol agents and placed in removal proceedings. While his case was pending in court, the government extended TPS protection to Salvadorans. The court put his case on hold to allow him to apply for TPS. Juan registered in the program and has remained in it since 2001.

Later, Juan visits an attorney to see if there is any way he can become a permanent resident through TPS. He is married, but his wife is in the TPS program as well. They have two children, both U.S. citizens, who are in junior high school and in great health. Juan has his own business cutting lawns. He and his wife own a house, and they file their income tax return every year.

Despite his many ties to the U.S., Juan’s only legal protection is the TPS program. Juan is afraid that if the TPS program for El Salvador ends, his court case will be reactivated and he will be ordered removed if he can’t convince a judge to grant him permanent residency. Juan’s only close relatives in El Salvador died years ago. He has no close family, friends, home, or realistic hope for employment in El Salvador. If Congress were to pass legislation providing relief for noncitizens with TPS, then Juan could apply for permanent residency and avoid being deported, a fate that would severely impact his family. Meanwhile, the U.S. would benefit from continuing to receive Juan’s labor, the sales, property, and income taxes he pays yearly, and the contributions his children make to their school.

While DHS can continue extending TPS designations, which is critically important for those registered in the programs, Congress must do something for the substantial number of individuals that have relied on uncertain TPS benefits for over 20 years.

4) Grant Permanent Residency to “Dreamers”

Deferred Action for Childhood Arrivals, also known as DACA, was created by President Barack Obama in June 2012. Noncitizens registered in the DACA program are colloquially known as “Dreamers,” based on the never-passed proposals in Congress called the DREAM Act (Development, Relief and Education for Alien Minors). The program used the prosecutorial discretion given by the INA to the executive branch to defer action against certain noncitizens who arrived illegally in the U.S. before they turned 16. It has been embroiled in federal litigation since 2018, and although it has thus far survived legal challenges, a federal judge prohibited new enrollments in July 2021.

Under DACA’s eligibility requirements, relief may be granted only if CIS determines that the noncitizen meets the program’s threshold criteria and merits a favorable exercise of discretion. Under the threshold criteria, eligible applicants are those who:

1. Were under the age of 31 on June 15, 2012, (that is, were born on or after June 16, 1981).
2. Were under the age of 16 when entering the United States.
3. Have continuously resided in the United States since June 15, 2007, up to the time of filing a request for DACA.
4. Have been physically present in the United States on June 15, 2012, and at the time of filing a request for DACA.
5. Had no lawful immigration status on June 15, 2012, or at the time of filing a request for DACA. This means the applicant must: 1) have never had a lawful immigration status on or before June 15, 2012, or, any lawful immigration status or parole obtained had expired as of June 15, 2012, and 2) any lawful status that obtained after June 15, 2012, has expired or was otherwise terminated before a request was filed for DACA.)
6. Are currently enrolled in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the U.S. Coast Guard or U.S. armed forces.
7. Have not been convicted of a felony, a significant misdemeanor (that is, a misdemeanor as described in 8 CFR § 236.22(b)(6)), or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.[16]

By passing legislation, Congress can remedy the predicament facing “Dreamers” and make their protection permanent. While the executive branch can use the tools at its disposal to deem them a low priority for removal, this does not solve the dilemma of what to do with the almost 600,000 “Dreamers” living in the United States.[17] Neither does it provide solutions for the mixed-status families whose lives are entwined with them. “Dreamers” are married to U.S. citizens and permanent residents, and they have children who are U.S. citizens. They are married to active duty troops and honorably discharged veterans. They are employed as teachers, nurses, paramedics, and other essential workers. “Dreamers” are a part of the U.S., and for many, the U.S. is the only country they know.

5) Grant Permanent Residency to Afghans Evacuated Through Operation Allies Welcome

During its military withdrawal from Afghanistan in August 2021, the U.S. airlifted approximately 120,000 Afghans out of the country. The chaotic evacuation happened as Taliban forces entered Kabul and the Afghan national government began to collapse.[18] Approximately 76,000 of these individuals were brought to the U.S. as part of Operation Allies Welcome, a federal effort to prevent vulnerable Afghans from being harmed by the Taliban and support their safe resettlement in the United States.[19]

Approximately 5,500 Afghans were resettled in Houston, Texas.[20] Afghans who were brought to the U.S. as part of Operation Allies Welcome were granted parole status for a two-year period. In addition, some evacuees have applied for asylum, for Special Immigrant Visa status based on prior work with the U.S. military, or for TPS, after DHS designated a TPS program for Afghanistan. Many evacuees have also recently applied to extend their parole status.

The common denominator for this community is the uncertainty of being allowed to stay in the United States — an uncertainty that has created an anxiety quite distinct from that of the other immigrant communities described above. Individuals forced to return to Afghanistan would face a country ruled by the Taliban, the same forces the U.S. government fought for 20 years. This group of noncitizens includes Afghans who interpreted for U.S. armed forces and who fought alongside U.S. troops throughout the U.S. military presence in Afghanistan. The Taliban has also banned women and girls from attending school beyond elementary age and from working outside the home. Further, the Taliban’s reprisals against Afghans who worked with the U.S. military or Western nongovernmental organizations create a very high risk of persecution for Afghans who return. For these reasons, many veteran and community groups have taken up the cause to lobby Congress to pass the Afghan Adjustment Act, which enjoys bipartisan support.[21]

While some controversy surrounds the vetting that was done of Afghans before they were evacuated, DHS has the ability to vet and investigate any applicant it determines has a questionable record, just as it does any other individual applying for immigration benefits. All Afghan adults who were brought to the U.S. were subjected to biometric screening and were resettled by federally funded agencies. If Congress passes the Afghan Adjustment Act, Afghans would again be required to submit to biometric screening and background checks.

If Congress fails to provide relief to this group of noncitizens through the Afghan Adjustment Act or other legislation, the U.S. faces a reckoning with present and future allies with regard to how it treats people who risked their lives to further U.S. interests in their own country.

6) Eliminate the Three-year, 10-year, and Permanent Bars in the INA

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the three-year, 10-year, and permanent bars to permanent residency for individuals who violated provisions of the INA. Ironically, the legislation led the country’s undocumented population to balloon from approximately 5 or 6 million to over 11 million in 2007.[22]

The three-year, ten-year, and permanent bars essentially seek to punish noncitizens who lived in the U.S. without legal status for a certain amount of time, later left the country, and then returned either with or without permission. Interpretations of complex terms such as “unlawful presence,” “unlawful status,” “entry,” “expedited removal,” and “material misrepresentation” come into play with regard to these bars and are outside the scope of this policy paper.

For an example of how these bars are implemented, consider the following examples:

1. Maria entered the U.S. with a tourist visa in 1990. She overstayed her visa. In 1995, Maria’s mother died in Ecuador, and Maria flew to Ecuador to attend her mother’s funeral. Maria went to the U.S. consulate to apply for a tourist visa and was denied because she had overstayed her time in the United States. Maria later returned to the U.S. illegally. She was not apprehended. Years later, she married a U.S. citizen who petitioned for her under Section 245(i) of the INA. Maria was eligible to apply for residency because both her overstay period and her illegal return were before April 1, 1997, the effective date of the IIRIRA.
    
2. Blanca entered the U.S. illegally in 2000. Maria’s mother died in Mexico in 2005. Maria heard from friends that if she left the U.S. and returned illegally, she might never be able to become a permanent resident. Maria consulted with an attorney because she wanted to attend her mother’s funeral. The attorney told her that because she had lived in the U.S. for well over a year after April 1, 1997, with no legal status, she would have no legal way to return if she left the country. Maria decided to remain in the U.S. because she has small children to care for and could not risk being unable to return and care for them.

After the passage of the IIRIRA, cases like Blanca’s multiplied by millions. As CIS officers around the country began to implement the bars newly created through the IIRIRA, the numbers of noncitizens living illegally in the U.S. rose.

Figure 1 — Estimated Number of Unauthorized Immigrants in the US, FY 1996–2018

 

The federal government has a duty to enforce America’s immigration laws to the best of its capacity and in a way that serves the country’s interests in justice and national and economic security. But it is also responsible for recognizing when an idea is simply not working.

The three-year and 10-year bars did not lower illegal immigration, nor did they did trigger a wave of self-deportations. Instead, they compelled noncitizens without legal status to stay put in the United States for fear of being unable to return. Congress should recognize this and amend the INA to eliminate these bars — or, provide a reasonable waiver procedure for each bar similar to those that exist in other parts of the INA for other immigration offenses.[23]

7) Raise the U Visa Cap to Give Relief to Crime Victims

In 2000, Congress created the U visa, which gives crime victims a pathway to permanent residency.[24] The law allows for 10,000 noncitizens to obtain a U visa each year. The visa is meant to do the following:

1. Strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking, and other crimes.
    
2. Protect crime victims who have suffered substantial mental or physical abuse due to the qualifying crime and are willing to help law enforcement authorities in the investigation or prosecution of the qualifying criminal activity or crime.

These 10,000 visas are used up every year, creating a backlog of crime victims who qualify for the visa but are unable to obtain one. Today, more than 300,000 applicants are waiting for a U visa — meaning someone placed on the U visa waiting list today will have to wait 30 years to be granted one.[25] This is hardly a sustainable way to manage a benefits program meant to, in part, foster cooperation between law enforcement and crime victims. Further, while CIS allows for some U visa applicants to obtain employment authorization during their application period, it is a slow process.

The U visa was created by Congress to help crime victims. Instead, it revictimizes them by forcing them to wait for decades for relief. In light of the backlog, Congress should raise the yearly U visa cap from 10,000 to a number that takes into account the stark number of noncitizen crime victims in need of protection.

8) Eliminate the “Sought to Acquire” Requirement in the Child Status Protection Act

Congress passed the Child Status Protection Act (CSPA) in 2002. The legislation provides relief to children who turned 21 — and therefore aged out — of residency petitions filed for them by their parents while the petition was still pending.[26] The CPSA can be complicated to interpret for immigration purposes, even for specialized attorneys. It requires applicants to ascertain, using a mathematical calculation, whether a child’s age can be “frozen” at the time of the parent’s petition.

While the CPSA has proven quite helpful for many, one provision in particular makes the law difficult to navigate for noncitizens seeking relief. It requires noncitizens who wish to use the CSPA to assert that they meet the INA’s definition of “child” to acquire a visa within one year of the visa becoming available.

This requirement — known as the “sought to acquire” provision — has been interpreted, but not clearly defined, by the courts.[27] As a result, many immigrants face difficulty in discerning when the one-year clock starts to tick, what it means for a visa to be “available,” and what exactly they must do to seek to acquire it. Many noncitizens have lost opportunities to apply for residency because they were unaware of the CSPA’s requirements.[28] These requirements are not provided in writing to the petitioners or beneficiaries of visa petitions — another hurdle that serves to limit how many people the CSPA can help.

Consider the following example:

• Mary entered the U.S. in 2000 with a tourist visa along with her 10-year-old daughter. Mary’s father petitioned for her under Section 245(i) of the INA. Mary assumed her daughter would be included in her case until the end of the petitioning process. A visa became available to Mary in 2021, but she was not made aware of it. In 2022, Mary consulted with a local charity that informed her that her daughter could not be included in the case because her daughter was no longer considered a child and because Mary took too long to advance with her case once a visa became available. Mary is despondent that after a 20-year wait, her now-32-year-old daughter will be left out of the case.

Congress has the power to amend the CSPA to eliminate the “sought-to-acquire” requirement. It can also amend the CSPA to permanently freeze a child’s age at the time the child is included in a petition, assuming the noncitizen met the definition of a “child” at the time of filing.

9) Create a Presumption of Hardship for Cancellation of Removal Cases

The U.S. has a nationwide system of immigration courts that are civil in nature. During removal proceedings in immigration courts, judges hear cases by ICE prosecutors regarding noncitizens whose cases have been referred to the court by a federal immigration agency, such as ICE, CIS, or CBP. Noncitizens can present a defense against removal to the judge. Under the INA, for example, noncitizens may request “cancellation of removal.”[29] Cancellation of removal is the second most common type of relief sought in immigration courts.[30]

Prior to IIRIRA, this kind of relief was called “suspension of deportation.” IIRIRA changed the name of this form of relief, along with the burden noncitizens must meet to prevail in court. Currently, the INA states that the U.S. attorney general may cancel removal of an inadmissible or deportable noncitizen and grant them lawful permanent resident status if they:

1. Have been physically and continuously present in the United States for 10 years.
2. Have been a person of good moral character during those 10 years.
3. Have not been convicted of an offense under Sections 1182(a)(2), 1227(a)(2), or 1227(a)(3) of the INA.
4. Establish that removal would result in exceptional and extremely unusual hardship to their spouse, parent, or child, who is a citizen of the United States or a noncitizen lawfully admitted for permanent residence.

The last requirement is the hardest to meet for any noncitizen presenting their case as a defense against removal (as Congress intended when it changed the hardship requirements for cancellation of removal in the IIRIRA). What “exceptional and extremely unusual hardship” means is not clearly defined in the law, and as a result, noncitizens throughout the country find themselves facing a lottery system in America’s immigration courts when it comes to grant and denial rates for cancellation of removal. Judges have discretion to interpret the law, and what one judge considers an exceptional and extremely unusual hardship, another will not.

In past rulings, judges have found that being separated from a child does not necessarily meet the hardship requirement.[31] Neither does being forced to return with family to a poor, crime-ridden country meet the “exceptional” and “extremely unusual” criteria.

To remedy this situation, Congress could amend the INA to create a presumption of hardship for noncitizens requesting cancellation of removal. There is precedent for this: In 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act (NACARA), and the DOJ implemented regulations to create a rebuttable presumption of hardship for those applying for relief through the legislation.[32] Applicants applying for relief through NACARA:

1. Are presumed to have established that deportation or removal from the United States would result in extreme hardship either to themselves or to their spouse, parent, or child, who is a citizen of the United States or a noncitizen lawfully admitted for permanent residence.
2. Will have their presumption of extreme hardship rebutted if evidence in the record establishes that neither they nor a qualified relative would likely suffer extreme hardship if the applicant were deported or removed from the United States.
3. Do not need to supply the burden of proof for a presumption of extreme hardship. Instead, the burden of proof to establish that neither the applicant nor a qualified relative is likely to suffer extreme hardship if the applicant were deported or removed from the United States lies with CIS.
4. May be referred to immigration court or have their application dismissed if CIS determines that neither the applicant nor a qualified relative would likely suffer extreme hardship if the applicant were deported or removed from the United States. Applicants are then entitled to a de novo adjudication, meaning they will again be considered to have a presumption of extreme hardship before an immigration court. If the immigration court determines that extreme hardship will not result from deportation or removal from the United States, the applicant’s request will be denied.

In addition to bringing cancellation of removal within reach for many, creating a rebuttable presumption of hardship for these cases would help alleviate the country’s massive immigration court backlog (Figure 2).

Figure 2 — Backlog of Pending Cases in US Immigration Courts, FY 1998­–2023

 

Conclusion

Congress must act to reform America’s immigration system. The American people can express their desire to create a generous or restrictive immigration system, but only Congress can do so.

The U.S. has a long history of exclusionary immigration policy, but it remains a country of immigrants.[33] By amending the INA and making other vital changes to the country’s immigration policies, Congress can create a system that embodies the very best American ideals and is the envy of the world for its fairness and flexibility. Indeed, if the legislative branch wishes to attract the best and the brightest minds, create a 21st-century immigration system that protects U.S. national and economic security, and foster justice and fairness in its laws — and make the lives of noncitizens residing in the U.S. without legal status much easier — it will need to make these and other long overdue reforms to the country’s immigration processes.

Endnotes

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[1] Emily Ekins and David Kemp, “Poll: 72% of Americans Say Immigrants Come to the United States for Jobs and to Improve Their Lives,” Cato Institute, April 27, 2021, https://www.cato.org/blog/poll-72-americans-say-immigrants-come-us-jobs-improve-their-lives-53-say-ability-immigrate.

[2] The author has practiced immigration law exclusively in Houston, Texas, since 1993 and has witnessed cyclical changes in immigration policies and laws and their impacts on American communities and immigrants. Additionally, she has volunteered since 2018 for the American Immigration Lawyers Association (AILA) as liaison to the Executive Office for Immigration Review.

[3] Homeland Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135.

[4] Kleindienst v. Mandel, 408 U.S. 753 (1972).

[5] Immigration and Nationality Act of 1952, Section 103.

[6] “Legalization through Registry,” American Immigration Council, September 28, 2021, https://www.americanimmigrationcouncil.org/research/legalization-through-registry; CIS has authority to exercise “favorable discretion” when adjudicating cases. For example, an applicant may qualify on paper but have a 20-year history of traffic offenses. Although these offenses would not legally disqualify the applicant, CIS has the authority to consider the history of flouting municipal laws a negative factor and deny the case based on the offenses.

[7] “Legalization Through Registry,” American Immigration Council.

[8] The fact patterns presented in this paper are based on the author’s experience practicing immigration law.

[9] “1) Deferred action, in one form or another, dates back to at least the 1960s. ‘Deferred action’ per se dates back at least as far as 1975. See, Immigration and Naturalization Service, Operation Instructions § 103.l (a)(l)(ii) (1975). 2) INA§ 204(a)(l)(D)(i)(II), (IV) (Violence Against Women Act (VAWA) self-petitioners not in removal proceedings are ‘eligible for deferred action and employment authorization’); INA § 237(d)(2) (DHS may grant stay of removal to applicants for T or U visas but that denial of a stay request ‘shall not preclude the alien from applying for … deferred action’); REAL ID Act of 2005 § 202(c)(2)(B)(viii), Pub. L. 109–13 (requiring states to examine documentary evidence of lawful status for driver 's license eligibility purposes, including ‘approved deferred action status’); National Defense Authorization Act for Fiscal Year 2004 § 1703(c)(d) Pub. L. 108–36 (spouse, parent or child of certain US. citizen who died as a result of honorable service may self-petition for permanent residence and ‘shall be eligible for deferred action, advance parole, and work authorization)”; Memorandum for CIS Director León Rodriguez, ICE Acting Director Thomas S. Winkowski, and CBP Commissioner R. Gil Kerlikowske from Secretary of Homeland Security Jeh Charles Johnson, November 20, 2014, 2nn1–2).

[10] U.S. Citizenship and Immigration Services, “Green Card through INA 245(i) Adjustment,” updated September 29, 2021, https://bit.ly/470YYKu.

[11] Phyllis A. Coven, “The Challenges of the Current USCIS Fee-Setting Structure Recommendation 63,” CIS Ombudsman, June 15, 2022.

[12] “U.S Visa Bulletin for August 2023,” U.S. State Department X, no. 80, Employment-Based Table, Charts A and B, India, 3rd preference, August 2023.

[13] “Continuation of Documentation for Beneficiaries of Temporary Protected Status Designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal,” Federal Register, November, 16, 2022.

[14] Aline Barros, “TPS Extended for Six Countries, Advocates Urge Status for More,” VOA, August 31, 2023, https://www.voanews.com/a/tps-extended-for-six-countries-advocates-urge-status-for-more/7248518.html.

[15] As an immigration attorney, the author has worked with noncitizens with TPS for over two decades.

[16] U.S. Citizenship and Immigration Services, “Consideration of Deferred Action for Childhood Arrivals (DACA),” last updated September 18, 2023, https://www.uscis.gov/DACA.

[17] “Dreamers By the Numbers,” FWD.us, March 7, 2023, https://www.fwd.us/news/dreamers-by-the-numbers/.

[18] Katie Rogers, “U.S. Acknowledges Afghanistan Evacuation Should Have Started Sooner,” New York Times, April 6, 2023, https://www.nytimes.com/2023/04/06/us/politics/evacuations-afghanistan-war-biden.html.

[19] Glenn Kessler, “Numbers behind Afghanistan evacuation come into focus,” Washington Post, May 25, 2022, https://www.washingtonpost.com/politics/2022/05/25/numbers-behind-afghan-evacuation-come-into-focus/.

[20] Elizabeth Trovall, “Houston led the nation in resettling Afghans, allowing agencies gutted under Trump to bounce back,” Houston Chronicle, October 9, 2022, https://www.houstonchronicle.com/news/houston-texas/immigration/article/Houston-Afghan-resettling-agencies-expanding-17492069.php; the author has volunteered with the Afghan community in Houston since January 2022.

[21] U.S. Committee for Refugees and Immigrants, “Re-Introduction of Afghan Adjustment Act Provides Chance to Fulfill Promise to Afghan Allies,” July 14, 2023; Chris Purdy, “Veterans urge Congress to pass the Afghan Adjustment Act,” Military Times, December 6, 2022.

[22] Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, “Shortfalls of the 1996 Immigration Reform Legislation,” April 20, 2007.

[23] The waiver procedures currently in existence for the three-year and 10-year bars have such demanding provisions that few noncitizens qualify for it.

[24] Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106–386.

[25] Tirzah Christopher, “A visa program created to help law enforcement puts immigrants at risk instead,” NPR, August 12, 2023.

[26] Child Status Protection Act, Pub. L. 107–208, August 6, 2002.

[27] Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).

[28] This is based on the author’s experience as an attorney.

[29] Immigration and Nationality Act of 1952, Section 240A(b)(1).

[30] “Beyond Asylum: Deportation Relief During the Trump Administration,” TRAC Immigration, October 29, 2020.

[31] Matter of J-J-G, 27 I&N Dec., 808 (BIA 2020).

[32] 8 C.F.R. 240.64(d) (1–4).

[33] National Archives and Records Administration, Chinese Exclusion Act of 1882.

 

Acknowledgement

Dedicated with love to my parents, Enrique and Martha Mendoza, who immigrated to the United States and fulfilled the American dream through their children, Elizabeth, Patricia, and Victoria.

 

This research is generously supported by a grant from the Charles Koch Foundation

This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.