Executive Order – What Does It Mean For You?

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.

Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President.

These initiatives include:

1.  Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years.

2.  Allowing parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks.

3.  Expanding 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.

4.  Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs.

5.  Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee.

NOTE: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available!

Who is eligible to benefit from the executive order?

1.  Deferred Action for Childhood Arrivals (DACA) program participants

Benefits current DACA recipients seeking renewal and new applicants, including individuals born prior to June 15, 1981, who meet all other DACA guidelines.

Allows individuals born prior to June 15, 1981, to apply for DACA (removing the upper age restriction) provided they meet all other guidelines.

Requires continuous residence in the United States since January 1, 2010, rather than the prior requirement of June 15, 2007.

Extends the deferred action period and employment authorization to three years from the current two years.  Implementation is expected approximately 90 days following the President’s November 20, 2014, announcement.

USCIS will being accepting applications under this new criteria by February 18, 2015.

2.  Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability – “DAPA”)

Benefits an undocumented individual living in the United States who, on the date of the announcement (November 20, 2014), is the parent of a U.S. citizen or lawful permanent resident and who meets the guidelines listed below:

Allows parents to request deferred action and employment authorization if they:

A.  Have continuous residence in the United States since January 1, 2010;

B.  Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014;

C.  Are physically present in the United States on November 20, 2014 AND at the time of making DAPA request;

D.  Have no lawful status on November 20, 2014;

E.  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 (defined as people suspected of terrorism, gang associations, or visa abusers, unlawful border crossers, and people convicted of felonies, aggravated felonies, significant misdemeanors, or three or more misdemeanors); and

F.  Present no other factors that would cause USCIS to deny the request in the exercise of discretion.

Notes: USCIS will consider each request for DAPA on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats.

DAPA process WILL be available to people with final orders or removal who meet the above criteria!  So if you have an old deportation or removal order, and you have not departed the United States since that order, consult with an experienced immigration lawyer to see whether DAPA is a good option for you, or if there are other ways to get rid of the removal order.

Implementation of DAPA is expected approximately 180 days following the President’s November 20, 2014, announcement.

USCIS will being accepting DAPA applications on May 19, 2015.  So it is important for you to start assessing your eligibility now and begin gathering proper documents of eligibility, so that you can be prepared to file your case as soon as possible after May 19, 2015.

3.  Provisional waivers of unlawful presence

Benefits undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are:

The sons and daughters (over the age of 21) of U.S. citizens; and

The spouse and sons or daughters (over the age of 21) of lawful permanent residents.

Expands the provisional waiver program announced in 2013 by allowing the spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to get a waiver if a visa is available. There may be instances when the qualifying relative is not the petitioner.

Clarifies the meaning of the “extreme hardship” standard that must be met to obtain a waiver.

Notes: Currently, only spouses and minor children (under the age of 21) of U.S. citizens are allowed to apply to obtain a provisional waiver if a visa is available.

Implementation will occur upon issuing of new guidelines and regulations.

4.  Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs

Benefits U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.

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.

Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

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.

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.

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.

Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.

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.

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.

Implementation will occur upon issuing of new guidelines and regulations.

5.   Promote the naturalization process

Benefits Lawful permanent residents eligible to apply for U.S. citizenship.

Promote citizenship education and public awareness for lawful permanent residents.

Allow naturalization applicants to use credit cards to pay the application fee.

Assess potential for partial fee waivers in the next biennial fee study.

Implementation is expected some time in 2015.

What are the next steps?

Individuals who think they may be eligible for one or more of the new initiatives listed above may prepare now by gathering documentation that establishes their:

Identity;
Relationship to a U.S. citizen or lawful permanent resident; and
Continuous residence in the United States over the last five years or more.

USCIS expects to begin accepting applications for the:

Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and

Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement.

Others programs will be implemented after new guidance and regulations are issued.

The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.

If you believe that you, or someone you know my benefit from the executive order, feel free to contact me to discuss how I can help.  It is important that you receive proper legal advice and that you avoid immigration scams.

Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.
Ruchi Thaker
Posted in Deferred Action, Deferred Enforced Departure, DHS, Executive Order, immigration, Immigration policy, Immigration reform, new law, USCIS.