JANUARY 2015
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Immigration

President Obama’s Executive Action on Immigration Law Enforcement: What Does It Mean?

Dilip Patel

By DILIP PATEL

As most of our readers know, on Nov. 20, President Obama announced a number of sweeping and historic immigration measures to address the country’s pressing immigration issues. The overriding principles behind the President’s announcement are: (1) prioritizing immigration law enforcement on those who pose a threat to the United States; (2) creating a program that ensures family unity; (3) facilitating the entry of highly skilled workers who contribute to the U.S. economy, and retaining those who are already here; and (4) securing the country’s borders. Two initiatives will grant work authorization and a shield against deportation for an estimated 4–5 million undocumented immigrants. Other initiatives will benefit over 400,000 foreign national employees waiting for green cards. While the announcement dominated the news and social media for several weeks, none of the actions outlined in the President’s speech and by the Department of Homeland Security shortly thereafter has taken effect.

The articles below summarize the President’s executive action, describe who is likely to be impacted, and explain when in the coming months these measures will be available to eligible foreign nationals.

Expansion of Deferred Action for Childhood Arrivals (DACA): As announced, the program that went into effect in 2012 will be expanded by eliminating the current age cap of 31 (as of the date of the original DACA announcement). Also, the eligibility cut-off date by which an applicant must have been in the United States will be moved to Jan. 1, 2010. Moreover, USCIS will grant DACA and work authorization for three instead of two years, which also will be extended to pending DACA renewal applicants.

USCIS expects to accept DACA application under the extended program within 90 days of Nov. 20.

Deferred Action for Parental Accountability (DAPA): USCIS will create a new deferred action process, similar to DACA, for parents of U.S. citizens and lawful permanent residents — such children must have been born as of Nov. 20, 2014 — who have been continuously present in the U.S. since before January 1, 2010; who were physically present in the U.S. on Nov. 20, 2014; and who are present at the time of application. Eligible parent-applicants will be able to request deferred action and employment authorization for three years, provided they pass required background checks.

USCIS expects to begin accepting applications within 180 days of the Nov. 20 announcement.

Expansion of Provisional Waiver Program: The provisional waiver process permits individuals who are eligible to apply for their green cards but who must apply for a waiver of inadmissibility because they have been in the United States unlawfully to do so from within the U.S. before departing for an interview at U.S. consulate abroad. Currently, only immediate relatives (spouses and children of U.S. citizens) are eligible to apply for provisional waivers. Under the expanded program, eligibility for such waivers will become available to all relatives for whom an immigrant visa is available. In other words, the provisional waiver will be available to the spouses and children of lawful permanent residents (LPRs) as well as other relatives of U.S. citizen-petitioners. Under the provisional waiver program, applicants must show “extreme” hardship to certain U.S. citizen or LPR family members. Under the new directive, USCIS also has been instructed to provide guidance on the definition of “extreme” hardship. The agency may also consider criteria by which a presumption of extreme hardship may apply, which would make it easier for otherwise eligible green card applicants to obtain this necessary waiver.

This change will be done by regulation, but no time frame has been provided.

Work Authorization for H-4 Spouses: A rule already proposed would permit H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD) card. The rule as proposed limited eligibility to H-4 spouses whose H-1B spouse has begun the process to obtain permanent residency.

Final rulemaking is expected in January 2015.

Foreign Student Optional Practical Training (OPT): The length of time for OPT for STEM (science, technology, engineering, and mathematics) graduates of U.S. institutions will be extended, and additional expansions of this program may occur, including the number of degree programs eligible for OPT.

This will be done by regulation, but no time frame has been provided.

PERM Labor Certification: Perhaps the most common way for employees to obtain green cards is through a labor certification showing that no U.S. workers are willing, able, or available to perform the job.

Regulations will be published to modernize the PERM program and to make the program more responsive to changes in the U.S. workforce.

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