Analysis of New Executive Action Immigration Rules: Who, What, When?

A week of frenzied speculation, anticipation and politicking over immigration has come to an end. Now that the President has spoken and the dust has settled, we are left to parse the new policies and understand the early indications of who will qualify for benefits, what they will need to do to apply and when the applications can take place. The new programs will not commence for several months and more details of application eligibility and procedures will be announced. 

Five Executive Action Initiatives

Following the President’s November 20, 2014 speech, five primary initiatives were announced by U.S. Citizenship and Immigration Services on November 20, 2014. In sum, the initiatives consist of:

1. The Deferred Action for Parental Accountability Program. Parents of U.S. citizens and lawful permanent residents who have been in the U.S. since the first of January, 2010, may remain in the U.S. and obtain employment authorization. Individuals who pose a threat to public safety or have significant prior criminal or immigration violations will not qualify. USCIS will begin accepting applications under this new program approximately 180 days following the President’s 11/20/2014 announcement.

According to the Department of Homeland Security, the information that applicants provide in their Deferred Action application will be protected from disclosure to Immigration and Customs Enforcement (ICE) for purposes of immigration enforcement. However, the information may still be shared with law enforcement under certain situations, including: assisting in the adjudication of the deferred action request; to identify or prevent fraudulent claims; for national security purposes; or for the investigation or prosecution of a criminal offense.

2. Expansion of the Deferred Action for Childhood Arrivals Program (“DACA”). The 31-year-old age ceiling for DACA eligibility will be removed. Eligibility will now include individuals who were brought to the U.S. prior to the age of 16 and have been present since at least January 1, 2010. The expanded DACA will allow for an extension of work authorization from two to three years. To qualify, individuals must have been unlawfully in the U.S. on 11/20/2014. USCIS will begin accepting applications under this new program approximately 90 days following the President’s 11/20/2014 announcement.

According to USCIS, individuals who currently have DACA, will not automatically receive the third year of deferred action and work authorization provided by the executive initiatives. The new 3-year work authorization allowance will be permitted for applications currently pending and those received after the President’s announcement on 11/20/2014. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card.

3. Expansion of the I-601(A) Provisional Waiver Program. Whereas currently a Provisional Waiver—which lessens family separation by permitting the immigrant to apply in the U.S. while their application is pending—can only be sought by someone who has a U.S. citizen spouse or parent, the program is being expanded. Under the forthcoming guidance, the Waiver can also be sought by a spouse or adult child of lawful residents and the adult children of U.S. citizens. It may be possible to obtain the waiver in cases when the qualifying relative is not the petitioner.

4. Expansion of Immigrant and Nonimmigrant Employment-Based Benefits. This benefit can be categorized under “coming soon” as it will require the passing of regulations. Relevant provisions may allow for a smoother transition to the U.S. for investors, entrepreneurs, researches, inventors and skilled foreign workers. “Visa numbers” (such as the India and Philippines backlog EB backlog) may move quicker as a more efficient method of allocating immigrant visas may be implemented.

Many foreign-born individuals come to the U.S. to study, but after graduation, these highly skilled college graduates are sometimes forced to return to their native countries. However, the anticipated new regulations may allow them to remain in the U.S. for an extended period of time while awaiting employment-based immigration opportunities in the U.S.  Also, the long awaited H-4 (spouse of an H-1B) work permit rules may be nearing finalization.  

5. Promoting the Process of Naturalization. New policies to make the citizenship process easier for lawful residents may come into effect, including promoting public awareness of the duties and privileges of U.S. citizenship.

Other Important Items in the Executive Action Provisions

USCIS has announced that several items which various business and immigrant groups and attorneys have been lobbying for in recent years are also in the works:

• The Parole-in-place (PIP) program will be expanded, allowing eligibility for dependents of certain individuals enlisted or in the process of enlisting in the U.S. armed forces.
• Advance Parole guidance is expected to be finalized and made consistent. Individuals issued Advance Permission to Travel by USCIS (one branch of the Department of Homeland Security) will not be denied entry due to the 3 and 10-year-bars by Customs and Border Protection (another branch of the Department of Homeland Security).
• The employment-based Labor Certification PERM Process will be modernized.
• Grey area terms that are prone to misunderstanding in the employment-based immigration context will be clarified—including “specialized knowledge”, and “same or similar” within the portability context.

What can a Beneficiary of Executive Action do at this time? 

Individuals who believe they meet the criteria under the first two initiatives of Executive Action should begin collecting evidence that will prove their eligibility. Examples of relevant documents include birth certificates of children, copies of Certified Court Dispositions of any criminal conviction, any previously received immigration paperwork/deportation/Notice of Action documents and proof of the applicant’s period of residence in the U.S. If there were trips outside of the U.S. during the “continuous residence” period, the immigrant will be asked to prove that the trip was a brief visit abroad.

Individuals considering eligibility under the new program need to speak with a licensed immigration attorney or an accredited legal services provider. During the Section 245(i) application period in 2001, and during the Legalization Amnesty programs of the 1980’s and 90’s, many immigrants received poor advice—often from unlicensed and unauthorized law service providers or notaries—the damaging effects of which are still being felt today.

Because several million immigrants may be applying for benefits under the announced plan, USCIS has recommended that applicants apply as early in the application period as benefits become available. As in previous wide-scale immigration relief plans, the demand on the Immigration Service to process the paperwork will be overwhelming and a backlog is possible. The new programs will not commence for several months and more details of application eligibility and procedures will be announced by USCIS in the coming months. 

A Significant Improvement to our Immigration Policy

We commend the President for decisively moving forward with Executive Immigration reforms. While some incorrectly characterize the Executive Action as an “amnesty” and others deride the measures as too narrow in scope, it is without a doubt that millions will benefit from the new policy. Law-abiding people who have been in the country for years will be able to come out of the shadows and confidently contribute to society.

Moreover, the updates to our inventor, investor, entrepreneur, skilled worker, and employment immigration categories show the world that our immigration policies are forward thinking and not out-of-step with other first world nations. They signal that America is a place that continues to attract, reward and make to feel welcome the world’s best and brightest.

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See also: The Deferred Action for Childhood Arrivals (“DACA”) program.

See also: Inadmissibility grounds that make an immigrant ineligible for benefits.

See also: 10 Things to Know about your immigration court hearing.

See also: 3 Tips for making the most of an immigration consultation.

See also: Information about scheduling a consultation with our law firm.