On November 20, 2014, President Obama announced an executive order entitled the Immigration Accountability Executive Action plan. The President’s executive order will change a number of immigration policies in order to help families, businesses, and communities. The executive action plan will impact all major parts of the immigration system, and includes:
1. A deferred action program for part of the undocumented population living in the United States,
2. Additional border security and enforcement,
3. Improvements to the adjudication of business and entrepreneur petitions and,
4. Improvements to the adjudication of family based petitions.
President Obama’s executive action will expand the Deferred Action for Childhood Arrivals (DACA) program, by eliminating the upper age restriction of the previous program. To be eligible for the new DACA program, individuals must meet the following criteria: (1) entered the country before January 1, 2010, (2) can demonstrate continuous presence in the United States since January 1, 2010, (3) and were under the age of 16 at the time they entered. When first established, DACA required that individuals 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 and work authorization for three years. Initial DACA applicants and those renewing their status under the previous DACA program will be eligible for a three-year grant of deferred action and work authorization as well. The new DACA program will be effective approximately 90 days from the date of the President’s speech on immigration reform.
The Deferred Action for Parental Accountability or DAPA program is a new policy, which will allow parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, provided they pass required background checks. To qualify for DAPA, an individual must meet three criteria: (1) have continuous residence in the United States since January 1, 2010; (2) are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014; and (3) are not an enforcement priority for removal from the United States, pursuant to the November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum. Over four million people are estimated to be eligible to apply for this program. U.S. Citizenship and Immigration Services (USCIS) should be ready to receive DAPA applications within 180 days of the announcement.
The Immigration Accountability Executive Action order also expands the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens. In 2013, USCIS published a regulation creating a provisional waiver that improved the process by which individuals can seek a waiver of inadmissibility due to their prior unlawful presence. The provisional waiver process allows eligible individuals to seek “pre-approval” of an unlawful presence waiver while in the United States. If approved, the applicant departs the United States, attends a visa interview at the U.S. Consulate in his or her home country, and if the State Department determines the applicant is not subject to any grounds of inadmissibility other than unlawful presence, the applicant is generally granted an immigrant visa without delay. The provisional waiver decreased the amount of time that individuals are separated from their family members and has encouraged more family members to seek an immigrant visa who are otherwise reluctant to travel abroad for an unknown period of time. 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. We will post more information when this program becomes effective.
President Obama’s executive action also will positively impact U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers. USCIS will be modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs. USCIS will work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas. Secondly, USCIS will work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability. Thirdly, USCIS will also be providing 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. Lastly, USCIS will clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy. We will post more information in these policies as soon as they are available.
According to the American Immigration Lawyers Association (AILA), “the President’s announcement will allow certain spouses of persons in H-1B status to work in the United States. Current regulations do not allow spouses to work. This lack of work authorization for H-4 dependent spouses gives rise to personal, professional and economic hardship for these families making the United States a less attractive option for foreign high skill workers. Since May 2014, spouses have been awaiting finalization of a DHS-proposed rule allowing for employment authorization for certain H-4 dependent spouses but only in cases where the H-1B worker is in the latter stages of obtaining a green card. Whether the President’s November 20 announcement will further improve upon the May 2014 proposed rule remains unclear. A finalized rule is expected in early 2015.”
According to AILA, “OPT is a period during which students who have completed or have been pursuing their degrees are permitted to engage in hands-on practical training to complement their field of studies. OPT is an important tool to help foreign students who are educated in the United States to remain temporarily in the United States to gain experience in their field of study. Some of these students, especially those in the fields of science, technology, engineering and math (STEM) are highly sought after by employers for their skills. The President’s reforms are expected to help employers retain these promising students by extending the length of time a STEM graduate can remain in the United States in OPT status as well as expand the number of degree programs eligible for OPT. A change in regulations is necessary to implement this reform.”
Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. USCIS will decide applications on a case-by-case
basis. Subhan Law Office, LLC, encourages all those who are eligible to apply for these initiatives as soon as possible. Please contact our firm today and schedule a consultation to discuss whether or not you are eligible for one of these new immigration policies at 414-223-5718 or toll free at 1-855-946-6848.