On November 20, 2014, President Obama issued an executive order for a sweeping overhaul of the US Immigration system.  While this action falls short of offering a path to citizenship, as proposed in the stalled bill passed by the Senate in 2013, it is a very welcome first step, offering new opportunities for the law abiding undocumented, especially those with families in the US, as well as high-skilled workers, students and entrepreneurs.  As well as providing for increased border security, the executive actions offer several new programs for undocumented immigrants seeking to remain in the US.  Under the new provisions any eligible applicants must register, pass a background check, and pay back taxes.  There are also measures designed to benefit business, including new options for foreign students, investors and entrepreneurs.

 

As detailed by US Customs and Immigration Service (USCIS) the main provisions of the executive order are as follows:

 

1)       Expansion of the existing Deferred Action for Childhood Arrivals (DACA) program

Under the new initiative individuals who came to the US before the age of 16, and have been in the US continually since January 1, 2010 (as opposed to the previous requirement of June 15, 2007), will be eligible for deferred action.  ‘Deferred action’ means deportation will be stayed, pending the passage of comprehensive legislation.  The upper age maximum of 31 has been removed, and the period of deferral and work authorization is increased to 3 years from the current 2 years.  The new provisions are slated to go into effect approximately 90 days after the November 20th announcement.  The changes apply to both new applicants and those seeking renewal.  All applicants must meet DACA guidelines.

 

2)      Introduction of Deferred Action for Parents (DAPA) of US citizens or lawful permanent residents (i.e. “Green card” holders)

Similar to the DACA program, this new DAPA program will allow parents of US citizens or green card holders who have been present in the US since January 1, 2010 to request deferred action and work authorization for up to 3 years.  This provision applies to undocumented individuals in the US at the time of the November 20 announcement who–

a)      Are a parent of a US citizen or green card holder

b)      Have continuous residence in the US since January 1, 2010

c)       Are not an enforcement priority for removal according to the November 20, 2014 Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants Memorandum

d)      Meet other criteria, including registration, background check, and payment of back taxes

Applications for the DAPA program will be considered on a case-by-case basis.  This program is slated to go into effect in approximately 180 days from the November 20 announcement.

3)      Expansion of Provisional waivers of unlawful presence to allow undocumented individuals to leave the US for visa application

This 2013 program currently applies only to spouses and minor children of US citizens; it will now be expanded to include sons and daughters of US citizens, and the spouses and sons or daughters of lawful permanent residents (green card holders).  The meaning of “extreme hardship” as applied to provisional waivers will be clarified.  This change is set to take effect upon the issuance of new guidelines and regulations.

 

4)      For business:  Modernize, improve and clarify immigrant and nonimmigrant programs to grow the economy and create jobs

Under this provision USCIS will work to develop improved methods of allocating immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals—in other words, streamline the green card issuance process and clear backlogs.

USCIS will work with the US Department of State to modify the Visa Bulletin system and make determinations of visa availability more simply and reliably.

USCIS will provide clarity on adjustment portability to remove unnecessary restrictions, increasing job mobility and providing relief for foreign workers currently facing adjustment delays.

There are also provisions to benefit foreign inventors, researchers and founders of start-up enterprises, including clarifying standards for a national interest waiver, and authorizing parole on a case-by-case basis to those who have been awarded substantial US investor financing, or who hold the promise of innovation and job creation through the development of new technologies and/or cutting edge research.

USCIS will finalize a rule to provide work authorization to spouses of H-1B holders (H-4’s) who are on the path to lawful permanent resident status.

USCIS will work with ICE to extend the use of optional practical training (OPT) for foreign students.

USCIS will provide clear guidance on the meaning of “specialized knowledge” as it applies to the L-1B visa category.

These changes will occur upon issuance of guidance and regulations.

5)      USCIS will also work during 2015 to promote the naturalization process, providing education avenues to potentially eligible lawful permanent residents

 

6)      Increased border security; deportations to focus on criminality

As detailed on their website, the US Department of Homeland Security will implement a Southern Border and Approaches Campaign Strategy through the use of task forces involving Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), US Customs and Immigration Service (USCIS) and the US Coast Guard.   DHS will also revise removal priorities as follows:

a)      First priority:  national security threats, convicted felons, gang members, and illegal entrants apprehended at the border

b)      Second priority:  those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014

c)       Non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014

Under the new policy, undocumented persons who entered the US without inspection prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.  The policy will also provide guidance on the use of prosecutorial discretion.

 

IMPORTANT:  USCIS strongly warns all those potentially eligible for the new programs that none of the above measures have yet been put into effect.  USCIS has also issued a warning against fraud, as it’s widely anticipated that there will be no shortage of online schemes and schemers seeking to take advantage of the undocumented.  Only official government websites should be trusted for information and/or applications, i.e., url’s ending in .gov. (url’s ending in .org are not always reliable); and/or consult a reputable immigration attorney for advice before embarking on any course of action which could adversely affect eligibility, particularly travelling outside the US.

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