Fact Sheet on Recent Executive Action on Immigration
December 1, 2014 To: Colleagues, Clients, Family, and Friends From: Margaret W. Wong & Associates, Co., LPA
Fact Sheet on Recent Executive Action on Immigration
On Nov. 20, President Obama announced an expansive plan of executive action regarding our country’s immigration system. While many of the new policy directives will not take effect immediately, it is apparent that they will affect a broad spectrum of Foreign Borns (“FBs”) in the United States, in circumstances spanning from deportation to employment-based immigration.
Summarized below are what I believe to be the key elements of the President’s executive action. I have also incorporated some of my own thoughts and analysis based on my 39 years of experience as an immigration attorney.
1. Expansion of Deferred Action for Childhood Arrivals Program (DACA)
• The age 31 upper age ceiling has been eliminated. • DACA applicants will only be required to show continuous presence in the U.S. since 01/01/2010 (previously 06/15/2007). • Deferred action and work authorization will be extended from 2 years to 3 years. • Other existing DACA requirements (such as arriving in the U.S. before the FB’s 16th birthday and the education requirement) remain the same. • Applications under new criteria should be available by 02/18/2015.
2. Deferred Action for Parents of USC and LPR Children (DAPA)
• Parents of U.S. citizens (USCs) and lawful permanent residents (LPRs) may apply for deferred action and 3-year work permits if they: o Have a USC or LPR son or daughter as of 11/20/2014; o Have no lawful immigration status as of 11/20/2014; o Have continuously resided in the U.S. since 01/01/2010; o Are physically present in the U.S. on 11/20/14 and at the time of application; o Are not enforcement priorities DHS under its new guidelines (see below); and o Pass a background check. • Applications for DAPA should be available by 05/19/2015. • It is not clear what will happen after 3 years. • Parents whose children are covered under DACA and longtime U.S. residents without qualifying USC or LPR children are not covered.
3. Revised DHS Prosecutorial Discretion Guidelines
• The 2011 Morton memorandum on prosecutorial discretion has been rescinded, with the new guidelines effective as of January 5, 2015. • The new memorandum establishes three priority levels for DHS enforcement efforts: o The first and highest priority for deportation includes convicted felons, gang members, and those caught attempting to enter United States borders illegally; o The second priority level includes those convicted of multiple or significant misdemeanors, those who entered the United States after January 14, 2014, and significant abusers of the visa/visa waiver program, and o The third priority level covers those who have been issued a final order of removal on or after January 1, 2014, but have failed to depart the United States. • DHS is directed not to expend resources detaining undocumented FBs who are not subject to mandatory detention where it is not in the public interest—e.g., FBs who are disabled or ill, or are primary caretakers of children or the infirm. • DHS personnel must still evaluate the “totality of the circumstances” of each case when determining when to exercise prosecutorial discretion.
4. Expansion of Provisional Waiver Program (“Stateside Waiver”)
• Access to the 2013 Provisional Waiver program will be expanded to include the spouses and sons and daughters of LPRs and the sons and daughters of USCs. • Currently, the Provisional Waiver program is only available to spouses, parents, and minor children of USCs. • USCIS will provide additional guidance on the definition of and criteria for “extreme hardship” to a USC/LPR spouse or parent for the purposes of the Provisional Waiver program.
5. Work Authorization for Certain H-4 Spouses
Pursuant to its proposed rule published this spring, USCIS is expected to publish a final rule allowing work authorization for certain H-4 spouses of H-1B visa holders who are on the path to LPR status.
6. Job Portability Before I-485 Filing for Certain Foreign Borns
• USCIS will develop regulations making it easier for certain FBs in the U.S. with an approved PERM and I-140 in either the EB-2 or EB-3 category to have a more portable (ability to change jobs) work authorization while waiting for an immigrant visa. • USCIS will also clarify the job changes (e.g., new job or promotion) that constitute a “same or similar” job that an FB may accept without voiding the approved visa petition.
7. National Interest Waiver (“NIW”) Clarification
• NIW allows FBs with advanced degrees or exceptional ability to apply for permanent residency without a sponsoring employer if their admission to the U.S. would be in the national interest. • Since NIW is underutilized, USCIS will issue guidance on clarifying the standards for qualifying for NIW.
8. Clearer Guidance on “Specialized Knowledge” for L-1B Intracompany Transferees
• The L-1B visa allows multinational companies to transfer managers/executives or employees with “specialized knowledge” to the U.S. from overseas offices. • USCIS will issue a policy memo that provides clear guidance on the meaning of “specialized knowledge” so that adjudication of L-1B petitions is more consistent.
9. Parole for Immigrant Inventors, Researchers, and Startup Founders
USCIS is directed to develop a program that will give parole status to foreign born inventors, researchers, and entrepreneurs who have obtained substantial U.S. financing or demonstrate the likelihood of innovation or job creation in the U.S.
10. Expanded Protection for Military Families
• Current USCIS policy grants “parole-in-place” (parole for FBs in the U.S. who were not lawfully admitted) to families of U.S. military service members. • USCIS is expected to expand parole-in-place and deferred action for family members of a USC or LPR who intends to enlist in the U.S. military. • USCIS is also expected to consider deferred action for undocumented family members of military and veterans who have overstayed visas.
11. Standardized DHS Advance Parole Policy
DHS has been instructed to follow a 2012 Board of Immigration Appeals decision (Matter of Arrabally) stating that leaving the U.S. under a grant of advance parole is not a “departure” that triggers the 3- or 10-year bar to admission due to unlawful presence in the U.S.
12. Expanded OPT (Optional Practical Training)
• USCIS is directed to develop regulations expanding the degree programs eligible for OPT and extending the OPT time period for students and graduates in STEM fields beyond the current 29 months. • USCIS must ensure that OPT employment needs to be correlated to US labor employment market and have stronger ties to the degree-granting institutions.
13. Modernization of the Immigrant Visa System
• USCIS is directed to work with the Department of State (DOS) to ensure that all immigrant visas are issued to eligible FBs when there is sufficient demand. • DOS has agreed to modify the “visa bulletin” to more reliably show when immigrant visas will be available in a fiscal year. • FBs who are beneficiaries of approved employment-based visa petitions but are stuck in the visa backlog may have their ability to file for green cards advanced so they can receive benefits like work authorization.
14. PERM Program Review
The Department of Labor (DOL) will review the PERM program to make it more responsive to the contemporary needs of the American labor market.
15. Expanded Categories of Crimes for U and T Visas
• The DOL will complete U-Visa certifications (for certain crime victims who assist authorities with investigation/prosecution) for three additional crimes: extortion, forced labor, and fraud in foreign labor contracting. • The DOL will also begin issuing certifications for T visas (for certain human trafficking victims who assist authorities).
16. The End of “Secure Communities”
• Secure Communities was a controversial initiative that pooled fingerprint data between ICE, the FBI, and state and local law enforcement agencies, allowing ICE to request a 48-hour “detainer” on FBs booked into local jails. • Secure Communities will be replaced with the Priority Enforcement Program (PEP), which will be focused against individuals convicted of certain crimes pursuant to DHS’s new enforcement priorities. • Except in certain circumstances, DHS will request “notification” of certain individuals released from jail instead of “detainers.”
As the state of US immigration law is constantly evolving, we may update this memo as new developments arise.
Warm Regards, Margaret W. Wong & Assoc., Co, LPA
Margaret W. Wong, Esq.