DHS Staff Time Wasted as Agency Issues Regulations for Unlikely Alien Situations

By David North on November 21, 2013

This administration bends over backward to stretch the law to cover unlikely situations that might conceivably inconvenience some alien, some day, under some circumstances.

And it spends money hiring regulation writers to provide all the bureaucratic verbiage needed to take care of these obscure situations.

A couple of years ago I wrote a blog about what DHS thought might be an inconvenienced group of alien "investors" in the Commonwealth of the Northern Mariana Islands (CNMI) just north of Guam.

The objects of the exercise were nonimmigrant aliens once ruled to be wealthy enough to be admitted to the islands as investors under earlier CNMI immigration laws, but now perceived as perhaps too poor to pay some immigration fees. At most, a tiny sub-population with an ironic set of suspected characteristics within a very small group of people.

DHS went to great lengths to write detailed instructions so that aliens in that category, in those islands, could remain in legal status but did not have to pay the fees paid by others. The group involved was a dwindling set of retired Japanese nationals living in rented quarters on three tropical islands: Saipan, Rota, and Tinian.

One of my old-Pacific-hands friends told me later that no aliens in the CNMI had taken advantage of the highly specialized regulations written for them.

Well, we have a similar case before us right now. Here on the mainland.

This time the scenario is a complicated one and may not exist in real life.

The object of our attention must be an H-1, H-2, or H-3 nonimmigrant worker living in the United States on a temporary visa who is accompanied by his or her H-4 nonimmigrant spouse. Let's say it's a male for simplicity's sake and that his temporary stay of several years is about to end and cannot be extended — temporary workers are, after all, supposed to go home when the job is over. She, as an H-4, has not been allowed to work in the United States, and her time in that status is also about to expire.

Now suppose she, on her own, can get an H-1, H-2, or H-3 slot (perhaps from her husband's employer).

The question arises (at least in somebody's mind): Can she be granted a different H visa by the government, in view of the fact of her H visa days are about to end? And what happens to the worker spouse? Can he, presto change-o, become the dependent spouse and an H-4 even though his days as an H nonimmigrant worker are about to end? In other words, do those time periods in other, earlier H categories still count against them?

USCIS has decided that no, none of those prior, limited H time periods are significant anymore and both can start all over again in their new roles. And, though the latest policy memorandum does not discuss the possibility, perhaps some years hence the couple can do the whole thing in reverse by reverting to their original statuses and thus stay in the United States for the rest of their lives, as long as they keep switching roles.

How often does this sort of scenario play out in real life? Not very often, one would suppose, but if it ever does, you can be assured that USCIS will be ready with the needed regulations to make it easy for such a nonimmigrant couple to keep their legal status ... forever.

This mini ruling is in keeping with what must be the administration's hidden mantra: If it's migration, it's got to be good, and it must be preserved at all costs!