21 November 2014
Category News Room
21 November 2014,
 0

It’s clear to anyone who sees our current system of immigration laws that the system is in much need of repair.  Although we feel the Senate Bill passed in June 2013 was not the perfect fix for these problems, it was a very meaningful compromise.  Since the Bill’s passage in the Senate there has been no movement in the House or meaningful dialogue in Washington on how to solve what is becoming a very big problem for many many people throughout America.  What the President announced last night is actually a very limited menu of policy changes that have not, with few exceptions, happened yet.  On this point we want to be clear – there is no special entrepreneurial parole today, and there is no expansion of DACA today – yesterday was simply an announcement of what will happen, but the actual details have not yet been committed to writing.

So it is important that people take a pause and consider their options when the policies are formally introduced in writing.  For many of our business clients, what was said last night will change nothing in the immigration strategy we have laid out for you or your employees.  For those clients we feel may benefit from these policies, we will be sure to let you know.  Here is a summary of the proposals that are to come out of the Executive Action – again, we await actual written guidance from the agency responsible for each program:

EXPANSION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

CHANGES
o   DACA will no longer have an age limit for first time applicants—to be eligible, one must have entered the U.S. before the age of 16, but the age restriction that requires an applicant to be born prior to June 15, 1981 will be lifted
o   DACA applicants will need to establish continuous residency in the U.S. since January 1, 2010, which will replace the requirement of continuous residency since June 15, 2007
o   Deferred Action and Employment Authorization Documents (EAD’s) will now be issued and may be extended for a period of three (3) years, rather than two (2) years
o   Note: To be eligible for DACA, an individual must still meet all other eligibility criteria

SUMMARY OF NEW ELIGIBILITY REQUIREMENTS
o   Came to the United States before your 16th birthday
o   Have continuously resided in the United States since January 1, 2010, up to the present time
o   Were physically present in the United States on June 15, 2012 and at time of application
o   Entered without inspection before June 15, 2012 or your lawful immigration status expired as of June 15, 2012
o   Are 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
o   Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety

BENEFIT OF APPLYING
o   If approved, applicant would receive three-year period of deferred action during which time work authorization would be granted

USCIS FILING FEE
o   $465

ANTICIPATED IMPLEMENTATION TIME
o   New criteria should be implemented within 90 days of the President’s November 20, 2014 announcement or February 18, 2015
o   As to pending applications filed under the former criteria, approvals will be for three-year periods effective November 24, 2014

EXPANSION OF DEFERRED ACTION TO INCLUDE ADULTS WITH CHILDREN WHO ARE U.S. CITIZENS OR LAWFUL PERMANENT RESIDENTS

GENERAL REQUIREMENTS
o   No lawful status as of November 20, 2014
o   Parent of U.S. citizen or lawful permanent resident on November 20, 2014
o   Continuously resided in U.S. since January 1, 2010
o   Physically present on November 20, 2014 and at time of application
o   Not an enforcement priority as outlined below
  Priority 1: threat to national security; recently apprehended at border; gang involvement; felony conviction; aggravated felony conviction as defined by INA
  Priority 2: 3 or more misdemeanor convictions excluding minor traffic violations; one significant misdemeanor conviction; undocumented and has not been continuously physically present since  January 1, 2014; significant abuser of visas or the visa waiver program
  Priority 3: issued a final order of removal on or after January 1, 2014

BENEFITS OF APPLYING
o   If approved, applicant would receive three-year period of deferred action during which time work authorization would be granted

USCIS FILING FEE
o   $465

ANTICIPATED IMPLEMENTATION TIMELINE
o   180 days from the President’s announcement or May 19, 2015

EXPANSION OF PROVISIONAL UNLAWFUL PRESENCE WAIVERS

CHANGES
o   Eligibility extended to include adult children of U.S. citizens and spouses and all children of lawful permanent residents in addition to already eligible spouses and children of U.S. citizens
o   Additional guidance will be provided on the definition of “extreme hardship” including clarification as to the factors that are to be considered by adjudicators and criteria by which a presumption of extreme hardship may be determined to exist

BENEFIT OF APPLYING
o   Opportunity to receive provisional approval of unlawful presence waiver prior to leaving the U.S. for an interview at a U.S. Embassy abroad
o   Reduction in time spent abroad and separated from family

ANTICIPATED IMPLEMENTATION TIMELINE
o   Upon issuance of new guidelines and regulations

MODERNIZATION, IMPROVEMENT AND CLARIFICATION OF EMPLOYMENT-BASED SYSTEM

NOTE: While President Obama’s actions focus more on family immigration and temporary relief to undocumented individuals, he did outline several business-related initiatives.  These initiatives, outlined below, will not be effective immediately and they do not increase nonimmigrant visa numbers or speed up the immigrant visa process nor is there a concrete timeline in place.

MODERNIZING THE EMPLOYMENT-BASED IMMIGRATION VISA SYSTEM
o   USCIS and the Department of State (DOS) should work together to ensure all available immigrant visas are used;
o   Modify the Visa Bulletin system so that it more reliably predicts visa availability; and
o   USCIS should consider policy changes to make it easier for AOS-pending employees to change jobs or employers.

OPTIONAL PRACTICAL TRAINING (OPT) FOREIGN STUDENTS AND GRADUATES OF U.S. UNIVERSITIES
o   Evaluate, strengthen and improve the OPT program to enhance American innovation and competitiveness;
o   Immigration and Customs Enforcement (ICE) and USCIS should develop regulations for notice and comment (i.e., allow people to provide input on any proposed change) to expand degree programs eligible for OPT and extend the time limit for STEM students and graduates for OPT;
o   ICE and USCIS should improve ties with schools to ensure that a student’s training furthers their degree field; and
o   ICE and USCIS should take steps to ensure OPT employments meets U.S. labor market protections to protect U.S. workers in related fields.

PROMOTE RESEARCH AND DEVELOPMENT IN THE U.S.
o   Improve opportunities for foreign investors, researchers, and start-up founders who want to conduct research and development and create jobs in the U.S.;
o   USCIS should issue better guidance or regulations to clarify standards for the National Interest Waiver; and
o   USCIS should propose a program for the Department of Homeland Security (DHS) that would allow DHS to grant parole to investors, researchers, and start-up founders who may not yet qualify for a national interest waiver, but who have been awarded substantial investor financing or who could bring innovation and job creation through the development of new technologies or through cutting-edge research.  Parole would be case-by-case, temporary, and would include income and resource requirements to ensure these individuals would not be eligible for federal assistance or premium tax credits under the Affordable Care Act.

BRING GREATER CONSISTENCY TO THE l-1B VISA PROGRAM
o   USCIS should issue a policy memorandum that provides “clear, consolidated guidance” on the meaning of specialized knowledge to ensure a cohesive standard.

INCREASE WORKER PORTABILITY
o   USCIS should issue a policy memorandum that clearly outlines what a “same or similar” occupational classification is for employees who are AOS-pending and want to change employers; and
o   The policy should make clear when a worker can take a promotion or supervisory role to promote natural career progression.  This flexibility would benefit both foreign and U.S. workers.

EXPANSION OF PAROLE-IN-PLACE AND DEFERRED ACTION FOR MILITARY

CHANGES
o   The class of individuals designated for favorable consideration for parole-in-place and deferred action will be expanded to include spouses, parents and children of U.S. citizens and lawful permanent residents who seek to enlist in the U.S. Armed Forces

BENEFIT
o   Parole-in-place: allows for the possibility of applying for immigration benefits from within the U.S.
o   Deferred action: temporarily suspends threat of deportation with possibility of employment authorization

ANTICIPATED IMPLEMENTATION TIMELINE
o   Upon issuance of new guidelines and regulations

PROMOTION OF NATURALIZATION PROCESS

PURPOSE
o   Promote citizenship education and public awareness for lawful permanent residents currently eligible to apply for U.S. citizenship

PLAN OF ACTION
o   Allow USCIS fees to be paid by credit card
o   Assess possibility of partial fee waivers

ANTICIPATED IMPLEMENTATION TIMELINE

o   During 2015

THE DEPARTMENT OF HOMELAND SECURITY’S “SOUTHERN BORDER AND APPROACHES CAMPAIGN”

PURPOSE
o   To realign border security assets to three Joint Task Forces focused on increasing enforcement and interdiction

THREE JOINT TASK FORCES
o   Joint Task Force East (geographic): Responsible for securing the southern maritime border, supported by the U.S. Coast Guard
o   Joint Task Force West (geographic): Responsible for securing the southern land border and West Coast, supported by Customs and Border Patrol (CBP)
o   Joint Task Force Investigations (functional): Responsible for supporting the other two task forces by providing investigations resources.

GOALS
o        Lower the risk of transnational terrorism and degrade criminal organizations passing over the border
o        Increase the “perceived risk” of attempting illegal border crossing
o        Stop the flow of illegal goods
o        Decrease the cost and inefficiencies of legal border crossings and maximize the lawful transfer of goods and travelers

REPLACING THE “SECURE COMMUNITIES” PROGRAM WITH THE “PRIORITY ENFORCEMENT PROGRAM”

END OF SECURE COMMUNITIES PROGRAM
o        Role of Secure Communities Program
         – To improve efforts to remove criminal foreign nationals in state and local law enforcement custody
         – Relied on the questioned legal authority of federal agencies to request detention and transfer orders from state/local authorities
o        The Program was widely criticized, local agencies refused to cooperate, and the program suffered from numerous legal attacks

START OF PRIORITY ENFORCEMENT PROGRAM
o   Goal
  – To continue to facilitate removal of criminal foreign nationals with the continued use of biometric data, but with a narrowed focus on listed priority offenders     and threats to national security
o        Replace federal requests of state/local detention with notification of state/local release of the foreign national
         – However, federal detention and transfer requests will continue if the foreign national falls under one of the priority offenses and the state/local agency agrees to cooperate
o        Priority Offenses – in order of highest to lowest priority
        –  Priority 1: “threats to national security, border security, and public safety”
         – Priority 2: “misdemeanants and new immigration violators”
– 3 or more misdemeanor convictions
– One significant misdemeanor conviction
– Illegal entries
– Significant abuses of the visa or visa waiver programs
         Priority 3: “other immigration violations”
– Foreign nationals who have been issued a final order of removal on or after January 1, 2014

FREQUENTLY ASKED QUESTIONS

1)      Will any of the President’s initiatives speed up the processing of my green card?  No.  Unfortunately, the President’s plan will not speed up the processing of your green card application.  He does not have the authority to increase legislatively mandated Immigration quotas, or to reclaim visa numbers not previously used, so lack of action in this area was expected.

2)      Will President Obama’s actions result in more H1B visas? No.  Unfortunately, President Obama’s announcement and initiatives will not result in additional H1B visas.

3)      Will I now be eligible for employment authorization based on my approved I-140?  No.  You are still required to have a pending adjustment application in order to receive employment authorization based on an approved I-140.  However we do expect in the next 90 – 180 days that USCIS will start to permit H-4 status holders an EAD if their spouse has an approved Immigrant Visa Petition.

4)      Will the changes he has introduced become permanent?  This remains to be seen.  It is clear that at this point anything that is introduced by way of new agency guidance or policy is technically temporary in nature and is subject to change by this President or any other future President.  We also expect that if Congress legislates in this area such orders would no longer be necessary, and such changes would then be permanent.

5)      Will these additional benefits being adjudicated impact my case process?  This remains to be seen, but slower processing is a very likely outcome of any process that suddenly adds applicants to the system.  By the government’s estimate there may be more than 4.9 million who qualify for EAD issuance and this is a significant pool of applications.

6)      If I am currently on a visa or in a green card process, should I take advantage of any of these new initiatives?  It is very important to note that the President has no power to create new visa classifications or to award more visas or green cards.  As a result, the President only used what limited authority he has to bend the system in a certain way.  We will only be advising clients to use the Deferred Action or Parole options if no other benefit option exists.  These are band-aide solutions and not fixes, and clients we act for who remain in a stable visa or green card process will not benefit from these changes in the vast majority of cases.

Please stay tuned as we add additional information, and be sure to contact Congress to suggest they work on meaningful immigration reform.

“This Newsletter is provided for information purposes only, and is not intended to provide legal advice.”

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