Obama Administration’s Immigration Policy Changes

Introduction

Yesterday, November 20, 2014, President Obama announced in his prime time televised address to the nation that he would sign an executive order today, November 21, 2014, which would make some changes to the U.S. immigration policy and provide some temporary relief to estimated five million undocumented immigrants now in the USA. While the action is not a permanent, it is expected to help changing immediate life conditions of many people. It will change immigration policy in several ways. First, it will remove the heavy burden of living under continuous threat of deportation from some individuals with substantial times to the USA. While the policy still fell short of providing any such protection to parents of DACA eligible children, it does offered it to individuals who, on the date of the new policy announcement — November 20, 2014 — had either USC or LPR children in the USA. In the spirit of the same, the new policy also expended the reach of DACA by removing the upper age restrictions on those, otherwise eligible, as well as demanded some liberalization of the legal definitions applicable to many immigration cases which, if implemented, would clarify and expend the reach of the Provisional Waiver program; expend the reach of the National Interest Waiver and improve the utilization of the immigrant visas, allocated annually by the Congress. It will also eliminate the “save communities” initiative, which rendered many people in the limbo of awaiting for ICE detention after serving their time in state custody for relatively minor criminal infractions. Below is the overview of some of the changes.

Making DACA Available To a Larger Pool Of Young People

The original reach of DACA — a program designed to provide some protection against deportation to young people who came to this country before turning 16 years old — was to extend only to those of the youngsters who did not reach the age of 31 on the day the new policy was announced on June 15, 2012, provided they could established they had been present continuously in the USA since March of 2007 and did not commit any felony or significant misdemeanor — a term defined rather loosely in the policy.

With the announced changes, the program now provides a new deadline for continuous presence — that of January 1, 2010 instead of March 2007. That means individuals who arrived in the USA while under the age of 16 prior to January 1, 2010, will now be included in the reach of the program and thus able to obtain work authorization and ability to not be deported by ICE. As a procedural change, the new policy also lengthened the term of the work authorization, which is now going to be issued with three-year validity instead of two. The updated program also removed the requirement that the individual had to be under the age of 31 on the date DACA was first announced on June 15, 2012. This requirement is completely eliminated under the new policy, making the current age of the applicant irrelevant as long as other eligibility requirements are met.

Here is a summary of the new eligibility requirements, which are expected to be implemented within the next 90 days:

•    The applicant came to the U.S. prior to his or her sixteen's birthday regardless of whether born before on or after June 15, 1981 — the now abolished deadline of the previous DACA program version
•     Is physically present in the USA on November 20, 2014
•     Had no lawful status on November 20, 2014
•    Can establish continuous residence in the United States since January 1, 2010, thus including individuals continuously resigning in the USA after June 15, 2007 — the prior DACA version deadline — but prior to January 1, 2010 — the new program's deadline for continuous presence
•     Is either a current DACA recipient or an individual who is currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
•    Qualify as a matter of discretion including having not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety

These individuals now, if approved, would be able to get deferred action — relief from removal — and employment authorization for an extended period of three years, as opposed to two years under the previous DACA version.

The new Programs are expected to be implemented within 180 days of November 20, 2014:

New Program for Parents of USC or LPR Children

The New Policy will now create a new temporary benefit for individuals who have USC or LPR children in the USA, provided these individuals can establish they have been in the country since January 1, 2010, continuously. They will now be able to request deferred action and employment authorization for three years. This new benefit will be referred to as Deferred Action for Parental Accountability (DAPA). As a prerequisite, the individuals will have to undergo necessary background checks.

To qualify, the applicant will have to show that on November 20, 2014 he or she is:

•     Has no legal immigration status in the USA
•     Continuously residing in the United States since January 1, 2010
•     The parent of a U.S. citizen or lawful permanent resident born on or before November 20, 2014
•     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

Provisional Waiver Expansion

Immigration and Nationality Act (INA) provides for inadmissibility waiver to individuals who accumulated requisite amount of unlawful presence in the USA. The waiver eligibility requires proof of extreme hardship to a qualifying relative, having identified USC and LPR spouses and parents as such. To file for the waiver the applicant had to depart the USA, appear at an immigrant visa interview at the U.S. Consulate in the country of residence, get rejected for inadmissibility reasons (3 and 10 year overstay bars only) and then file for the waiver at the consulate and pay requisite fees. Such procedure always resulted in long family separation as waiver adjudication often took close to two years. The applicant was not allowed in the USA during this time and had to await adjudication while staying outside of the USA and away from the family. The situation created especially harsh conditions for those families where the applicant was the primary breadwinner in the family.

The administratively created Provisional Waiver program, also know as stateside or I-601A waiver by the identifying number of the USCIS form it utilizes, somewhat addressed the issue by allowing qualified individuals to apply for the waiver and await adjudication while still in the USA. Such procedural change had the effect of cutting to minimum the amount of time needed to be spent outside of the country to that required by the immigrant visa interview at the consulate. Unfortunately, the Provisional Waiver procedure limited qualifying relatives to U.S. Citizen souses and parents, thus providing no relief to those whose parents or spouses were LPRs.

The changes the President announced yesterday, November 20, 2014, will correct this problem by expanding the use of the Provisional Waiver of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens, thus bring the Provisional Waiver in par with the statutory provided inadmissibly waiver for the overstay. Here are the new eligibility requirements as announced: The applicant will have to demonstrate that he or she is:

•     An individuals with no legal immigration status in the USA who have resided unlawfully in the United States for at least 180 days.
•     The son or daughter of a U.S. citizens or the spouse, sons or daughters of a lawful permanent resident, regardless of whether the qualifying relative is the petitioner.
•     An immigrant visa is immediately available for the applicant.
•     The applicant, who can establish to the satisfaction of USCIS that his or her removal from the USA would result in the “extreme hardship” to the qualifying relative under the clarified definition of the “extreme hardship”.

The following programs are to be implemented as soon as the regulations are published:

Legal Clarifications and Improved Coordination with Other Agencies

The policy as announced also directed various DHS department to take steps in the direction of “modernizing, improving and clarifying” immigrant and nonimmigrant programs “to grow our economy and create jobs” and clarifying and liberalizing important legal definitions like “extreme hardship” in the provisional waiver context and “same or similar occupation” in the AC 21 context, just to name a few.

In particular, the DHS Secretary has charged various DHS Departments to take the following specific steps:

•     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 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.

Encouraging Application for Citizenship

The final important initiative announced by the President Obama carried as it stated goal “promoting citizenship education and public awareness for lawful permanent residents”.

This program will be designed to deal with the LPR moral, encouraging LPRs to apply for Naturalization and providing necessary resources to prepare for the process. It will also be providing an option for naturalization applicants to use credit cards to pay the application fee as today they can only do so by check or money order, and review the potential of offering a partial (50%) fee reduction to those LPRs who do not qualify for a complete fee waiver as they earn more than 150% of the Federal Poverty Guidelines but less than 200%.

The Programs Are Not Yet Implemented

The President's announcements and corresponding memoranda published by the DHS Secretary Johnson make it clear that it will take new federal regulations and in some cases, policy memoranda are needed in order to implement the initiatives. The Government estimates between 90 to 180 days to accomplish that. Hence, no application for a new or expended benefit can be presently filed until such regulations and policy memoranda are in place.

Secretary Johnson has charged the requisite DHS agencies with the responsibility to complete this process with estimated time including producing relevant detailed definitions, clarifications, explanations, instructions, regulations and forms to implement the initiatives.

References:

1.     USCIS Information Page on the Executive Action
2.     Transcript of the President Obama Remarks
3.     Sec. Johnson's Memo on Military Families
4.     ICE Instructions on seeking Prosecutorial Discretion
5.     DHS directive on consistency of Advance Parole
6.     DHS Memo on Expending Access to Citizenship
7.     Thompson's Opinion On Legality of Deferred Action
8.     Johnson's Memo on ICE Officers' Pay
9.     Johnson's Memo on PD and Deferred Action
10.     Johnson's Memo on Secured Communities
11.     Johnson Memo on Policies for Apprehension and Removal of Criminal Aliens

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