Detailed Breakdown of the President’s Executive Action on Immigration

As previously reported, on November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation. The President’s Executive Action package is very broad and touches many aspects of immigration law. We provide a more detailed breakdown of the different initiatives the government plans to implement in the near future. Note that the initiatives below have not yet been implemented, and there is currently no application procedure available.

1. Designating certain enforcement priorities and strengthening security  at the border

First enforcement priority will be threats to national security, border security, and public safety.  Second priority will be individuals convicted of significant misdemeanors, or three or more misdemeanors arising out of three separate schemes, and new immigration violators, including people who entered unlawfully after January 1, 2014, and people who have significantly abused the visa process.  Third priority will be individuals with other immigration violations, including those who have been issued a final order of removal on or after January 1, 2014.  Significantly, individuals with removal orders issues prior to January 1, 2014, will no longer be an enforcement priority.  The guidance designating the above enforcement priorities takes effect on January 5, 2015.

The government has announced that it will do away with immigration detainers.  This applies to individuals arrested by local authorities and held for purposes of immigration enforcement beyond the point at which they would otherwise be released.  Instead, the government will implement a request for “notification” when a law enforcement is about to release an individual.  It is unclear at this point what this means.  There are exceptions to the non-detainer principle.  For example, if the individuals is a third-priority alien subject to a final order of removal, or if there is sufficient probable cause to find the person is removable.  This is a broad exception as individuals can be removable for many reasons, including being a simple overstay.  There is also an exception for “national security” cases.

2. Expanding the current Deferred Action for Childhood Arrivals (DACA)

The government plans to expand DACA to young people who came to the U.S. before turning 16 years old and have been present since January 1, 2010 (continuous presence requirement has been shortened from June 15, 2007) and extending the period of DACA and work authorization from two years to three years. The expanded DACA initiative allows individuals born prior to June 15, 1981, to apply for DACA (removing the upper age restriction), provided they meet all other guidelines. This is not a permanent solution and it does not provide a pathway to citizenship, subject to the discussion on Matter of Arrabally further below. This initiative is expected to be implemented approximately 90 days following the announcement.

3. Deferred Action for Parental Accountability (DAPA)

U.S. Citizenship and Immigration Services (USCIS) will create a new deferred action process, similar to DACA, granting deferred action to eligible parents of U.S. citizens and lawful permanent residents. The parents must have been continuously present in the country since January 1, 2010. If DAPA is granted, the applicant will receive employment authorization for three years, provided they pass required background checks.

Significantly, at this time it appears that there is no maximum age requirement as it relates to the age of the child. However, the child must have been born on or before November 20, 2014. It is unclear if step-children and adopted children will qualify, but it is possible that the government will follow the statutory definition of “child” which includes step-children, if the marriage between the biological parent and step-parent occurred prior to the child’s turning 1, and adopted children, if the adoption took place prior to the child’s turning 16.

The applicant must also not be an enforcement priority for removal from the United States, pursuant to the memorandum issues on November 20, 2014. The memorandum states that individuals with removal/deportation orders issued on or before January 1, 2014 will not be a priority for removal. This is not a permanent solution and it does not provide a pathway to citizenship, subject to the discussion on Matter of Arrabally further below. USCIS expects that it will begin accepting DAPA applications proximately 180 days following the President’s November 20, 2014, announcement.

Even though this initiative has not yet been implemented, there are reports of Immigration Courts administratively closing proceedings for individuals potentially eligible for DAPA.

4. Revisions to Waivers of Inadmissibility

The I-601A provisional waivers of unlawful presence waiver will be expanded to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens.  There may be instances when the qualifying relative is not the petitioner.  This will be done by regulation and no time frame is provided.

USCIS will also provide guidance on the meaning of the “extreme hardship” standard that must be met to obtain a waiver of inadmissibility.  USCIS will also seek to consider criteria by which a presumption of extreme hardship may apply.  Allowing a presumption of extreme hardship could lead to higher predictability and improved processing times.  However, this is uncertain, as extreme hardship waivers have a second element/requirement which is purely discretionary.  Therefore, even if an applicant meets the presumption, he or she could still be denied if there are significant negative factors in the case – i.e. non-payment of taxes, failure to support dependents, serious or frequent criminal transgressions, etc.

5. Worksite Compliance

Establishing an interagency worksite enforcement group  to identify policies and procedures that promote consistent enforcement of federal labor, employment and immigration laws to protect U.S. workers. It is unclear what this means, but potentially this may have the consequence of increased information-sharing between a number of agencies, including DOL, DHS, DOJ, EEOC and NLRB, for example sharing of information obtained in the course of audits, site visits, etc.

6. Policies Supporting U.S. High-Skilled Businesses and Workers

The government expects to also implement the following initiatives relating to U.S. high-skilled businesses and workers:

  • Finalize the proposed rule to provide work authorization to the H-4 spouses of certain H-1B visa holders who are on the path to lawful permanent resident status. USCIS expects to publish the final rule in December 2014 or January 2015.
  •  Allow individuals with approved employment-based immigrant petitions who are caught in the quota backlogs to file for adjustment of status to permit them to obtain the benefits of a pending adjustment. This is expected to impact 410,000 people.
  • Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.  No time frame has been provided.
  • Clarify the standard by which an EB-2 national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S. economy.  This will be done by policy memorandum, but no time frame has been provided.
  • Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who: have been awarded substantial U.S. investor financing; or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research. This will be done by regulation and no time frame has been provided.
  •  Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.  This will be done by policy memorandum.  L-1B petitions are a source of frequent frustration as the government’s guidelines on the meaning of “specialized knowledge” are currently very vague, allowing USCIS adjudicating officers very broad discretion.
  •  Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.  This will be done by policy memorandum and no time-frame has been provided.

7. Modernizing the PERM Labor Certification Program

The U.S. Department of Labor (DOL) will review the PERM program  and regulations with an eye toward modernizing the system and making it more responsive to changes in the U.S. workforce.  DOL will specifically look at methods and practices to modernize U.S. worker recruitment requirements, the possibility of premium processing, and the feasibility of addressing non-material errors without denial, among other things.  Premium processing for PERM would be a very significant improvement of the current process, as it takes 5-8 months to obtain a PERM decision.  If there is an audit, it could take up to two years.  DOL will seek input from stakeholders but has not indicated a time-frame.

8. Providing Consistency Regarding Advance Parole (AP)

USCIS will issue guidance clarifying that the holding in Matter of Arrabally-Yerrabelly (that travel on AP is not a “departure” within the meaning of INA Section 212(a)(9)(B)(i) and therefore does not trigger the 3/10 year bars for unlawful presence) applies to all cases, not just the specific fact pattern in Arrabally. This is significant because, if the USCIS recognizes that the application of Arrabally is not limited to individuals eligible for adjustment of status before they departed on AP, individuals who initially entered without inspection and who depart based on AP through DACA, DAP and TPS could be able to adjust status after traveling abroad, because entering on AP would presumably constitute a lawful entry and the departure would not trigger the 3/10 year bar.

Regardless of how the above initiative turns out, it will be risky for individuals to leave on AP, because allowing entry on AP is within the discretion of Customs and Border Protection (CBP) agents. There are reports of CBP agents refusing entry to individuals who possess valid AP. This means that, regardless of Arrabally, CBP could potentially refuse entry to an individual who otherwise holds a valid AP. Of course, that means that adjustment of status would then not be an option, because an individual must be in the U.S. to adjust status.  Therefore, an individual in such a situation would be stuck outside likely having triggered the 3/10 year bar. This initiative thus has the potential of “tricking” individuals into self-deporting by leaving the country. It is unclear if the guidance USCIS plans to publish will also address issues affecting CBP admission at the border.

9. Expanding Parole in Place (PAP)

This initiative would expand the PIP program for Families of U.S. Armed Forces Members and Enlistees to encompass spouses, parents and children. USCIS will further consider the availability of deferred action for certain undocumented family members.

10. Promoting Citizenship education and public awareness

This initiative would promote citizenship for lawful permanent residents by providing an option for naturalization applicants to use credit cards to pay the application fee and by increasing public awareness about obtaining citizenship.

11. Policies related to U and T visas

Importantly, USCIS will add three criminal activities to the list of qualifying crimes for U and T visa status: extortion, forced labor, and fraud in foreign labor contracting.  DOL will be able to certify U visa applications for individuals whose employers have abused them. This could be a very important development, as this type of visas provide a pathway to permanent residence and citizenship. It is unclear exactly what the details will be, but this could potentially lead to a higher rate of complaints from employees for violations by employers that may lead to U visa certification. It is an important step towards combatting human trafficking by encouraging victims to complain to the authorities. Effective in early 2015, DOL will be able to certify this type of cases.

12. Other reforms

Other reforms include modernizing and streamlining the U.S. Visa System, integrating immigrants and refugees, Immigration Court reforms, personnel reform for ICE ERO officers.

How to Prepare for Executive Action Initiatives

Even though the above initiatives have not yet been implemented, certain documents that would likely be required to prove eligibility may be difficult to obtain.  Therefore, it may be wise to begin collecting certain documents, although it is unclear exactly what specific types of documents the government will accept.  For example:

  • Documents to prove identity – passport, birth certificate, school ID, state ID, military ID, etc.;
  • Documents to prove physical presence and entry – I-94, passport stamp, travel itinerary, boarding pass, tax returns, employment records, medical records, school records, etc.
  • Criminal records (if applicable) – police records, charging documents, plea, disposition, termination of probation, etc.;
  • Immigration records – if you do not have your immigration records, they can be obtained from the government through a Freedom of Information Act (FOIA) request which can take several months; and
  • Documents to prove relationship to and status of qualifying relative – for example, birth certificates of U.S. Citizen children, proof of permanent residence, marriage certificate, U.S. passport, U.S. naturalization certificate, etc.

The above list is not exclusive and further documents may be required once more details about the new initiatives have been released.

Beware of scams.  Individuals who claim that they can file an application at this time pursuant to Obama’s executive action are likely attempting to defraud you.  These initiatives have not yet been implemented.  You may follow the government’s progress in implementing the initiatives by visiting the official USCIS website.

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