Immigration Q & A December 2014
Author by Edward Boreth
OBAMA’S EXECUTIVE ACTION ON IMMIGRATION
On November 20 and 21, 2014, President Obama announced his “immigration accountability executive action,” which includes a number of changes in immigration policies within the Department of Homeland Security and several benefits for immigrants. It is important to understand that this not a new law. Only Congress can pass laws. The President can only make an executive action within the executive branch, so the changes are relatively small. This is not immigration reform, but the new programs affect quite a lot of people.
Based on a briefing on November 20, 2014 by the White House, the following is a summary of the elements expected to be part of the Administration’s announcement of executive actions on immigration. Our understanding is that details (and memos) are still being worked on at this time. Many items are still unclear, and the merits of many may not be known until the details are known. Some will require regulations, but others can be done by memo.
Here is a summary of the main components of the action and the categories of people they will affect.
Change in Enforcement Priorities
The government will still continue deportation. However, they will try to focus on deporting people with criminal convictions, suspected terrorists, and people who only recently crossed the border illegally. They will try to back off from deportations of people with no criminal convictions, long residence in the United States, and strong family ties to the U.S. They will also allow more groups of people to apply for a temporary reprieve from deportation. These groups will be eligible for what is know as deferred action and will get temporary employment authorization in the process. The groups will be know as DACA and DAP, and are explained below.
The Department of Homeland Security will expand the pool of DREAMers (people brought to the United States as children) eligible for the DACA program that was first created in June 2012. Under the expanded program, individuals are eligible if they entered the country before January 1, 2010 (The old program required entry before June 2007), can show that they have been present in the United States since then, and were under the age of 16 at the time they entered. Initially, DACA required that the applicant be under the age of 31 at the time of application, but the new program has no current age limit. The expanded DACA program will now grant deferred action for three years. Previously DACA granted deferred action for two year periods. Initial DACA applicants and those renewing their status will be eligible for a three-year grant of deferred action and work authorization.
DAP: Work Permits To Parents of Citizens or Permanent Resident Children
DHS will establish a deferred action program for the unauthorized parents of a U.S. citizen or lawful permanent resident child born on or before November 20, 2014. To qualify, individuals must have lived in the United States continuously since before January 1, 2010. Deferred action will be granted for three years.
Expand Provisional Waiver Program
Currently, many immediate relatives of U.S. citizens who are present in the United States are not eligible to apply for lawful permanent resident status in the United States because they entered the country unlawfully. Instead, such individuals must depart the United States and request waivers of inadmissibility due to their prior unlawful presence. This is quite risky and which often results in a long separation from their family members in the United States. Because of the risks, many immediate relatives of U.S. citizens do not apply for an immigrant visa and stay in the shadows.
In 2013, USCIS published a regulation creating a provisional waiver that improved the process for spouses of U.S. citizens. These individuals can seek a waiver of inadmissibility due to their unlawful presence. The provisional waiver process lets them get a “pre-approval” of an unlawful presence waiver while in the United States. If approved, the applicant leaves the United States, attends a visa interview at the U.S. Consulate in his or her home country, and is generally granted an immigrant visa without delay to come back to the United States as a permanent resident. (unless the Consulate finds another reason for inadmissibility – a different type of violation). To obtain a waiver, an applicant must show that the bar to admission would impose an “extreme hardship” to a U.S. citizen or LPR spouse or parent.
The President’s action directs USCIS to expand the categories of family members who are eligible to apply under the “Provisional Unlawful Presence Waivers” rule, to include spouses and children of lawful permanent residents and sons and daughters of U.S. citizens. The new policy will significantly expand the number of individuals who are able to take advantage of the process. USCIS is also directed to provide additional guidance on the definition of hardship, to make it easier to prepare and application.
Improve The Employment Based Visa Process
The President announced several beneficial changes in the processes for visas and green cards based on employment or business. Significant backlogs exist in the employment-based green card system even as U.S. businesses face a variety of skill needs. Depending on their country of birth, some of these skilled workers are facing years long wait times to be able to file for adjustment of status, the final step in order to get a green card, once one is available. If that worker is waiting in a temporary nonimmigrant status, such as an H-1B, they are essentially locked into the same job position and title where they started. Under the current system, the spouse is not allowed to work. Many H-1B holders wait a decade to obtain a green card.
The President’s proposal addresses people with approved employment-based petitions (I-140), who are waiting for a priority date to become available to file their adjustment of status applications. Many Indian born workers are in this position. Now they will be able to file an adjustment of status application before the visa becomes available. This fixes a major problem under the current system, and will allow these families to receive employment authorization and advance parole.
Foreign Entrepreneurs: While details are still not settled, the President’s program will allow certain inventors, researchers, and founders of start-up enterprises to be “paroled” into the United States (or be granted “parole in place” if already in the United States) if they show they have a certain amount of investment funding. DHS will also issue a new regulation or guidance clarifying that inventors, researchers, and founders of start-up enterprises are eligible to obtain a national interest waiver and, as a result, green cards. Both of these ideas have the potential to create new and better pathways for people who will create new jobs in the United States.
Additionally, the President directed the various government agencies involved to provide more clarity and simplicity in guidance on a variety of work or business relation immigration areas. Some examples of this are L1-B visas for specialists transferring between companies, PERM, and expansion of OPT practical training for students.
Contrary to some rumors, the President is not giving out free US citizenship to anyone who asks. However, he directed the government to make the process of applying for U.S. Citizenship easier. The details are still unclear, but one of the points will include the ability of the government to accept credit cards for filing fees*. The President has also asked USCIS to conduct a study to see it some people can have reduced fees.
While the President’s action has many critics and also leaves out many groups of immigrants, the bottom line is that now more people in the immigrant community will be able to get employment authorization, (and consequently valid driver’s licenses) and will be able to work, pay taxes and contribute to the community. This summary does not contain all the details and many details still have to be worked out. However, I have already begun on preparing for some of these applications and I welcome your questions at email@example.com.
* As some of the reader may know, my firm has been accepting credit cards for the citizenship filing fee for many years now. I wonder if I inspired that particular reform?
The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.
Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a director of the Citizenship Clinic. He is also an avid cricket fan.