Breaking News 12.2.2014

Will Obama's New Policy Help You?

On November 20, 2014, the President announced several new policy changes that will benefit immigrants who were present in the United States on that date. The administration refers to the new program as Immigration Accountability Executive Action.

Deferred Action Expansion

This program allows individuals who fit in to a specific category to be deferred from deportation and allowed to work in the U.S. for a temporary period. In some cases, those who are granted permission may also travel outside the US and return.

DACA Expansion

DACA refers to Deferred Action for Childhood Arrivals and is also known as the benefit for DREAMers. According to the recent announcement, the upper age limit will be eliminated and people of any age can apply if they meet the other requirements. The current DACA rules require someone be under the age of 31 on June 5, 2012.

To be eligible for the expanded DACA, an applicant must have entered the US before the age of 16, and must have been physically present in the US by January 1, 2010, resident here since that date, and physically present in the US on November 20, 2014.

DACA will be granted in three year increments, applicable to all first-time applications as well as all applications for renewal effective November 24, 2014. Work cards will be valid for three years. DACA renewal requests now pending will be given the new three year period of status.

USCIS is advising that they expect these changes to take effect approximately 90 days from November 20, 2014. Therefore, it likely won't be possible to file DACA requests under the new rules until at least late February, 2015.

DAPA Initiation

USCIS will create a new deferred action process called Deferred Action for Parental Accountability (DAPA) for individuals who:

- have a U.S. citizen or Lawful Permanent Resident (green card holder) son or daughter (of any age) as of November 20, 2014;

- have had had a continuous residence in the U.S. since before January 1, 2010;

- were physically present in the U.S. on November 20, 2014;

- are physically present in the U.S. at the time of requesting DAPA;

- has no lawful status in the U.S. as of November 20, 2014;

- each applicant must pass a criminal and security background check and must not be a deportation enforcement priority under new guidelines discussed below).

Like DACA, deferred action under DAPA will be granted for a period of three years.

The fee for both types of deferred action is $465.

USCIS should start accepting applications by late May 2015. In the meantime, any potentially eligible applicants who have encounters with immigration officials may be able to request administrative closure or termination of their case. DHS will review cases currently in removal proceedings to see who might be eligible for relief and those cases will be closed.

According to estimates by the Obama administration, the new policy could benefit 4.4 million people.

Enforcement Priorities

New enforcement priorities will be grouped into 3 categories according to level priority for the administration.

Priority 1 (threats to national security, border security and public safety)

- Persons engaged in terrorism or espionage or who pose a danger to national security

- Persons apprehended at the border or ports of entry while attempting to unlawfully enter the US

- Persons convicted of offenses relating to participation in a criminal street gang or aliens not younger than 16 who intentionally participated in a gang to further the illegal activity of the gang

- Persons convicted of an offense classified as a felony in the convicting jurisdiction other than a state or local offense for which an essential element was the alien's immigration status

- Persons convicted of an aggravated felony

Priority 2 (misdemeanors and new immigration violators)

- Persons convicted of three or more misdemeanor offenses other than minor traffic offenses or state/local offenses where immigration status is an essential element

- Persons convicted of a "significant misdemeanor" which means an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug distribution or trafficking, or driving under the influence. Also, offenses which resulted in a sentence to time in custody of 90 days or more (not including suspended sentences)

Priority 3 (other immigration violations)

- Persons who have been issued a final order of removal on or after January 1, 2014. Individuals in priority 3 should generally be removed unless they have an asylum claim or another form of relief.

Department of Homeland Security (DHS) detention resources should be used to support the enforcement priorities. Persons suffering from serious physical or mental illness, who are disabled, elderly, pregnant or nursing, who are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest, should be given special consideration. Otherwise, special permission needs to be obtained from the ICE Field Office Director.

Various circumstances can be used to support a positive determination for prosecutorial discretion including:

- The offense of conviction

- The amount of time since the conviction

- The length of time in the US

- Military service

- Family or community ties in the US

- Status as a victim, witness or plaintiff in civil or criminal proceedings; or

- Compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

These changes take effect on January 5, 2015.

I-601A Provisional (Stateside) Waivers of Unlawful Presence

US Citizenship and Immigration Services (USCIS) will issue new regulations and policies regarding I-601A waivers. The provisional waiver of unlawful presence has been available only to spouses and children of US citizens since 2013. The rule will now be extended to cover all statutorily eligible classes of relatives for whom an immigrant visa is immediately available (including spouses and children of lawful permanent residents, adult children of US citizens, and lawful permanent residents). Provisional waivers will also available to lawful permanent resident spouses. The waiver will still be limited to unlawful presence. No other grounds of inadmissibility can be waived with a provisional waiver.

These changes will not take effect until new guidelines and regulations are issued and USCIS has not provided a timeline. It will likely be several months or longer before the guidelines and regulations are completed.

USCIS is also expected to clarify the factors that are considered by adjudicators in determining whether the "extreme hardship" standard is met. This is meant to facilitate broader use of the waiver program.

Employment Based Immigration Reforms

USCIS is expected to make regulatory changes in a wide range of areas that will make the employment based immigration process more predictable and streamlined. Many of the possible changes have not been mentioned with great detail and most have not been given timeframes for implementation but they include:

USCIS should enhance work with the Department of State to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand. The DOS Visa Bulletin should be simplified.

USCIS should look at other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS will consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases when an applicant seeks to change employers. The intent is to remove unnecessary restrictions to natural career progression and give workers increased flexibility and stability.

USCIS will look at modernizing the visa system and consider issues such as derivatives being counted and whether past unused visa numbers can be recaptured.

NIW - USCIS will issue new guidance and regulations to clarify the standard by which a national interest waiver can be granted. This category is considered underutilized and the administration hopes to promote its greater use for the benefit of the US economy, including for entrepreneurs.

Parole in place is being expanded to certain entrepreneurs. USCIS will grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver but who have been awarded substantial US 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.

USCIS and ICE will develop regulations to expand the degree programs eligible for Optional Practical Training under the rule that currently allows certain STEM graduates to use OPT for up to 29 months. The time period of 29 months will likely be extended. OPT rules will be reviewed to ensure the training is furthering the student's full course of study and that OPT is consistent with US labor market protections to safeguard the interests of US workers in related fields.

PERM - The Department of Labor will review the 10 year old PERM program to modernize it and make it more responsive to changes in the national workforce.

These changes are to be implemented by guidance and regulation and the administration has given no timeframe.

H-4 WORK AUTHORIZATION - A new rule regarding H-4 work authorization will be released by late 2014 or early 2015.

U.S. Citizenship/Naturalization

USCIS will begin accepting credit cards as a payment option for the naturalization fee. This change will take effect by the end of 2015. This is meant to encourage those who are currently eligible for naturalization to apply for the benefit.

USCIS will expand citizenship public awareness by launching a comprehensive media campaign targeting major media markets in California, New York, Texas, Florida, New Jersey, Illinois, Massachusetts, Virginia, Washington and Arizona which are collectively home to 75% of the country's population of Lawful Permanent Residents.

Expanded Parole in Place and Deferred Action for Military Families

An expanded program will provide immigration benefits ("parole in place" and "deferred action") to the relatives of people who wish to enlist in the US military. If you are a US citizen or Lawful Permanent Resident who has tried to enlist in the military (even if you were not successful in doing so), your parents, spouse, and children may be eligible for immigration benefits, even if they are not here lawfully. If you are a military veteran or currently serving member of the US military (including the Reserve or National Guard), you and your family members may be eligible for immigration benefits. If you are a DACA or DAPA beneficiary, and you wish to enlist in the military, your family members may be eligible for these benefits as well.

What Should I Do Now if I Think I Qualify for a Benefit?

Most of these benefits will be available in a few months. Now is the time to meet with an immigration attorney to determine what your rights are. DON'T fall victim to fraud-there are already non attorneys (and some unscrupulous attorneys) ready to take your money and disappear with it. Get good advice before doing anything. Our office will keep you posted as to developments with each of the President's programs mentioned here.