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President Obama’s Executive Order posted on November 21, 2014

Last night, on November 20, 2014, President Obama announced Immigration Accountability Executive Actions in an attempt to fix our current “broken” immigration system.  The President stated that he intends to: 1) crack down on illegal immigration at the border; 2) prioritize the deportation of felons; and 3) 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.  In an effort to ensure that you are informed of what these actions mean for you, your families, and friends we have summarized the President’s most important points below.

The first will affect the parents who have a U.S. Citizen or Legal Permanent Resident son or daughter.  This will allow people who have been continuously present in the United States since January 1, 2010, and have a son or daughter who is a U.S. Citizen or Legal Permanent Resident born on or before November 20, 2014, to request deferred action as a form of temporary relief from deportation and request work authorization. All applicants will be required to pass a background check and pay taxes.  If granted, the deferred action and work authorization will be valid for three years.  Most importantly, people with final orders of removal or current pending immigration court cases are eligible to apply.  This new program will be implemented in no more than 180 days.  However, any person who is considered an enforcement priority for removal according to USCIS will not be eligible for this relief.

The second is an expansion of the Provisional Unlawful Presence Waiver.  The unlawful presence waiver is necessary for persons who have entered the United States illegally or overstayed a visa.  Other than a few exceptions in the law, persons who overstay visas or who entered the United States without inspection are not eligible to adjust their status in the United States and can only get a green card by departing the United States and applying at a consulate abroad.  The current immigration laws penalize persons who have been in the United States without status; a person who has been here unlawfully for more than 180 days but less than a year is prohibited from returning to the United States for three years.  A person who has been unlawfully present for more than a year and departs is barred from returning for 10 years.  The law provides for a waiver of the 3 and 10 year bars if the person can establish extreme hardship to certain qualifying U.S. citizen or Lawful Permanent Resident spouses or parents; however, the waiver may only be applied for abroad.  Therefore, very few people are willing to depart the United States to apply for the waiver, because if the waiver is denied the person is barred from returning for 10 years.  President Obama, in a prior executive order, allowed a “provisional unlawful presence waiver” be made available where persons could apply for the waiver from inside the United States, and, if granted the waiver, could take a short trip abroad to get an immigrant visa and return.  Currently, a person may apply for a provisional waiver only if they are the spouse or the child under 21 years of age but over the age of 17 of a U.S. Citizen and could demonstrate extreme hardship to that qualifying relative. This new expansion would allow the spouses of Permanent Residents and adult children of Legal Permanent Residents and U.S. Citizens to apply for the waiver if an immigrant visa is immediately available to them and they can establish extreme hardship to their qualifying relative(s).  Additionally, USCIS will be issuing a new memo to clarify and expand the standard of extreme hardship.

The third is an expansion of the Deferred Action for Childhood Arrivals (DACA). Currently, DACA provides those who are under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007, as children under the age of 16, and who meet certain other criteria to apply for deferred action.  If granted, the individual is granted deferred action with employment authorization for two years. It could then be renewed for an additional two years. This new expansion will allow a person of any age (even over 31) who entered the United States by January 1, 2010, before the age of sixteen to apply. The period for which DACA and employment authorization is granted will be in three year increments.  USCIS will begin accepting applications under the new criteria in no later than 90 days.

The fourth concerns timing for those filing for Adjustment of Status. Employment-based immigrants may be permitted to file for Adjustment of Status immediately upon the approval of the visa petition rather than waiting for their priority date to become current.

The President’s actions include important changes to current legal immigration practices in an effort to boost the U.S. economy and promote naturalization. These changes will come in the form of regulations.  Some of these actions include:

  • changes to current H-1B employment authorization for spouses of H-1B visa holders;
  • expanding immigration options for foreign entrepreneurs who create jobs and generate U.S. revenue;
  • the expansion and extension of Optional Practical Training (OPT) for foreign students studying science, technology, engineering, and mathematics (STEM); and
  • clarifying guidelines on L-1 visas and the labor market test.

In summation, it is important to remember that President Obama did not grant permanent “legal status” (citizenship or residency) to anyone here unlawfully. These actions are temporary solutions, so anyone who currently has a case for residency pending should continue with their current case, as these new executive actions will not directly benefit you.  As mentioned above, applications for the President’s actions will not be accepted by USCIS right away. These actions are also subject to discretion by USCIS and are evaluated on a case by case basis based on the facts and circumstances of each individual.  Anyone who does wish to apply for any of the above or who wishes to learn if they qualify under these Executive Actions and other types of cases should contact us to set up a consultation.

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