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President Obama Takes Executive Action on Immigration

On November 20, 2014, in a live address to the nation, President Obama introduced several recommendations to fix the U.S. immigration system through executive action.

Although the focus was on expanding the deferred action program, these actions may also affect U.S. citizenship procedures and high-skilled employees. Here’s a short summary of what to expect.

- Enforcement Priorities: (1) Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and persons apprehended on the border; (2) Persons convicted of serious or multiple misdemeanors and very recent border crossers; and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal.

- Expand Deferred Action for Childhood Arrival (DACA) Program: DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. The entry date will also be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. This is supposed to be up and running in 90 days.

- Extension of Deferred Action to Parents of U.S. Citizens and Permanent Residents: DHS will extend deferred action to individuals who (1) are not removal priorities under the new policy, (2) have been in this country at least 5 years, (3) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (4) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will be required to pay all future taxes. This program should be up and running within 180 days.

- Provisional Waiver Expansion: The provisional waiver (I-601A) program that DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.

- Timing of Filing for Adjustment of Status: The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.

- Business Immigration Changes: A number of business immigration improvements are expected in the coming months. For example, certain investors will be eligible for parole into the U.S., or for parole-in-place, and national interest waivers could be available for entrepreneurs, researchers, inventors, and founders. Also, the term “same or similar” for AC-21 purposes will be clarified, L-1B guidance will be released, the H-4 EAD regulation will be finalized, and the length of time permitted on OPT for STEM graduates will be expanded. Additionally, the rulemaking process will be undertaken to modernize the PERM labor certification program and may include a harmless error provision.

- Visa Modernization: There will be a Presidential Memorandum directing the various immigration-related agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law. Issues such as whether derivatives should be counted towards the visa quota and whether past unused visa numbers can be recaptured are expected to be included in this effort.

- Parole-in-Place: This program will be expanded to include families of individuals trying to enlist in the armed forces, as some branches of the military ban applicants who have undocumented family members.

REMEMBER: These proposed actions are NOT CURRENTLY in place. Orner Law cautions all potential beneficiaries of the above actions to beware of notarios and and other unauthorized consultants who will be taking advantage of the public in the coming months.  If you think you may be eligible for any immigration benefits as a result of President Obama’s announcement, please consult with a licensed immigration attorney.