USCIS Acts to Plug Parole Employment Loophole

Action will curb illegal entry by family units

By Andrew R. Arthur on August 21, 2019

U.S. Citizenship and Immigration Services (USCIS) issued a policy alert this week captioned "Employment Authorization for Parolees". The underlying policy to which that alert refers will plug a major loophole that encourages family units (FMUs, that is, an alien traveling with a child or children) to enter the United States illegally.

That alert states that the agency is issuing guidance in its "Policy Manual" (which provides bright-line rules to be followed by its employees) that will address those employees' discretion to grant employment authorization (or not) to aliens who have been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (INA), including aliens who have entered the United States illegally.

That section permits immigration officers to temporarily parole aliens into the United States. Parole is not a formal admission to the United States, but rather permits the alien to come into the country on a temporary basis. Congress has specified that parole be granted "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit". It expires when, in the sole discretion of an immigration officer, the purpose of the parole has been satisfied.

Of late, it has been used by Department of Homeland Security (DHS) employees to allow FMUs to enter the United States due to a lack of detention space for those FMUs. Why is there a lack of detention space? Because, as I have previously explained, Congress has failed to provide sufficient housing for those aliens. Specifically, there are only about 2,500 detention beds for FMUs, whereas, according to DHS statistics, 42,566 aliens traveling in FMUs were apprehended last month entering the United States illegally.

The April 16, 2019, "Final Emergency Interim Report" from the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel aptly describes the current system for processing of FMUs, and its consequences (all emphases are added):

After being held for several days at inadequate and overcrowded holding areas at USBP stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America.

As the panel explained:

More recently, with the expanding crisis, [U.S. Customs and Border Protection (CBP)] directed that FMUs be released with a NTA within a few days after their surrender to the [U.S. Border Patrol (USBP)] and preliminary processing. None of these migrants released with a NTA have been given a credible fear interview prior to their release, because there are no USCIS credible fear examiners at USBP stations.

The panel described this process as the "the major 'pull factor'" for the recent increase in FMUs from Central America entering the United States illegally.

In an April 2019 post, I discussed a decision by the attorney general that month in Matter of M-S-, in which he held that aliens found to have a credible fear in the course of expedited removal proceedings are ineligible for bond. That decision states: "Such an alien must be detained until his removal proceedings conclude, unless he is granted parole." (Emphasis added.)

Here is the problem: The regulation governing employment eligibility, 8 C.F.R. §274A.12(c)(11), states that aliens who have been paroled into the United States are eligible to apply for employment authorization immediately. In that April 2019 post, I explained:

This is actually a better position than the alien would be in if the alien were released by an immigration judge on bond, because there is no corresponding regulatory paragraph that authorizes employment eligibility for such individuals. The only employment eligibility that could apply to such an alien would be 8 C.F.R. § 274a.12(c)(8), which [provides authorization for]:

An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application:

(i) Has not been decided, and who is eligible to apply for employment authorization under § 208.7 of this chapter because the 150-day period set forth in that section has expired. Employment authorization may be granted according to the provisions of § 208.7 of this chapter in increments to be determined by the Commissioner and shall expire on a specified date.

The referenced regulation, 8 C.F.R. § 208.7(a)(1), states than an applicant for asylum may apply for employment authorization 150 days after that alien has submitted a completed asylum application, if no decision has been made on that application. Then, if no decision is made on the asylum application within 30 days after the filing of the request for employment authorization, the asylum applicant may be granted the employment authorization, in accordance with section 208(d)(2) of the ... INA.

Congress intended that aliens who enter or attempt to enter the United States without proper documents be placed in expedited removal before they have the possibility of being placed in removal proceedings. That is the purpose of the expedited removal provisions in section 235(b) of the INA. The lack of detention space for FMUs, however, subverts this intention by placing DHS in a dilemma: Place the aliens in the FMU in expedited removal proceedings, which will (as the foregoing explains) require the department to release them on parole or make them eligible for employment authorization, or simply release them on their own recognizance with an NTA.

The latest USCIS statistics show that almost 78 percent of aliens who went through a credible fear screening this fiscal year (through January 2019) were found to have a credible fear. So, though the rate of aliens found to have credible fear is high, the credible-fear screening actually does limit the number of aliens in expedited removal who are placed into removal proceedings, which limits the strain on scarce immigration-court resources, because immigration judges will not have to hear cases where no credible fear is found.

As the "Emergency Interim Report" from the CBP Families and Children Care Panel shows, DHS has had to release FMUs with an NTA and without a credible fear screening. All of those aliens are placed into removal proceedings, swelling the immigration courts' dockets.

In the April 2019 post on the downside of Matter of M-S-, I explained:

To recap, ICE currently lacks the detention space for the vast majority of FMUs apprehended by CBP to enable USCIS to perform credible fear interviews, so aliens entering illegally or seeking admission without valid entry documents are being given NTAs and released on their own recognizance. If ICE was able to provide sufficient space for those aliens to be placed in expedited removal and given credible fear interviews, however, unless there was a significant expansion in the detention space for FMUs, most of those aliens found to have credible fear would be released on parole and would be immediately eligible to apply for employment authorization.

This explains why the president, on April 29, 2019, issued a "Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System", which (among other things) calls for regulatory changes to ensure that "aliens who have entered or attempted to enter the United States unlawfully [are barred] from receiving employment authorization before any applicable application for relief or protection from removal has been granted."

There is no good reason why aliens who have been released on parole should receive employment authorization — they are already receiving a benefit from the U.S. government (release); employment authorization would simply encourage aliens without valid claims to game the system.

Otherwise, the disaster gets worse.

The policy alert addresses these issues, as the USCIS press release relating thereto explains:

"Directly addressing loopholes that encourage the exploitation of our immigration system is the only way forward," said Acting Director Ken Cuccinelli. "Responsible stewardship of our discretionary authorities enhances our ability to provide relief to those who lawfully qualify for it. With that in mind, USCIS is taking action within its discretionary authority by only granting employment authorization to parolees after consideration of all relevant factors on a case-by-case basis. This decision is in response to the national emergency at the southern border where foreign nationals are entering the United States illegally, as well as based on a review of USCIS adjudicatory practices over the past few years."

Specifically, as the alert states, the policy guidance:

  • Emphasizes the use of discretion when determining whether to grant employment authorization for foreign nationals paroled into the United States in keeping with existing policies.
  • Provides a list of positive and negative factors that an officer may consider when balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion.

Limiting the probability that FMUs will be immediately eligible for employment authorization after entering the United States illegally will diminish the incentives for them to break U.S. law with impunity, preserve the integrity of the credible-fear process, and reduce the demands on scarce immigration-court resources. By reducing those incentives, the new policy guidance will in turn cut the number of aliens entering this country illegally across the Southwest border, which will allow USBP and CBP as a whole to use its limited resources for other purposes, such as stopping the flow of illegal drugs into the United States, which are wreaking havoc on communities across the nation.

Not to complain, but this is an action that USCIS should have taken much earlier, before the flow of aliens entering illegally became the legal and humanitarian disaster it is today. The agency should also tighten up the other grounds for employment authorization: If jobs are the magnet that draws aliens to enter the United States illegally, limiting employment authorization will restore integrity to the immigration system as a whole.

Better late than never.