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The Department of Homeland Security (DHS) proposes to amend its regulations governing adjustment of status to lawful permanent residence in the United States. The proposed changes include permitting concurrent filing of a visa petition and the application for adjustment of status for the employment-based 4th preference (certain special immigrants) category, including religious workers; permitting the transfer of underlying basis of a pending adjustment of status application; amending the definition relating to ineligibilities under section 245(c) of the INA; clarifying when a visa becomes available for purposes of the age calculation under the Child Status Protection Act; and authorizing compelling circumstances employment authorization for certain derivative beneficiaries waiting for immigrant visa availability. DHS also proposes to amend the regulations relating to temporary protected status and travel authorization and clarify the impact on the adjustment of status eligibility. The intent of these proposed changes is to reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas.

Statement of Need:

This rulemaking is necessary to address outdated regulations to improve efficiency and the administration of the adjustment of status of immigrants to lawful permanent residence in the United States, improve the quality of inventory data that DHS provides to agencies, reduce the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas. This rule also changes eligibility requirements for certain classifications for what constitutes compelling circumstances for employment authorization.

Summary of the Legal Basis:

The DHS’s authority for the regulatory amendments proposed are found in various sections of the Immigration and Nationality Act (INA), codified at title 8 of the United States Code, and the Homeland Security Act of 2002 (HSA), Pub. L. 107-296, 116 Stat. 2135 (Nov. 25, 2002), codified at 6 U.S.C. 101 et seq. Specifically, 6 U.S.C. 112, and 8 U.S.C. 1103, charge DHS with the administration and enforcement of the immigration laws of the United States, and 8 U.S.C. 1103(a) authorizes DHS to establish such regulations, prescribe such forms of bond, reports, entries, and other papers; issue instructions; and perform such other acts deemed necessary for carrying out the Secretary’s authority under the provisions of the INA, including for the provisions related to immigrant visa petitions (8 U.S.C. 1153 to 1155);  Adjustment of status of refugees (8 U.S.C. 1159); Special Agricultural Workers (8 U.S.C. 1160); Admission of nonimmigrants (8 U.S.C. 1184); Temporary Protected Status (8 U.S.C. 1254a); Adjustment of status of nonimmigrant to that of person admitted for permanent residence (8 U.S.C. 1255); Adjustment of status of certain resident aliens to nonimmigrant status; exceptions (8 U.S.C. 1157); Work Authorization (8 U.S.C. 1324a).

Anticipated Costs and Benefits:

DHS is currently considering the specific impacts of the proposed provisions.