The true scope of the President’s Executive Action Announcement on November 20 will only be revealed in the following months. Numerous questions remain and the programs could be replaced by legislative action next year. If not, the application process and changes announced will be implemented at the earliest in 180 days. U.S. Citizenship and Immigration Services (www.uscis.gov) will be posting updates as well as the White House.
Obviously, the devil and the true impact will be in the details of the implementation roll out. The Department of Justice is preparing for an onslaught of lawsuits by opponents. With these caveats, there are numerous potential beneficiaries of the proposal. The following is a limited outline (please note that the comments are very preliminary and subject to revision as announcements are made):
(Deferred Action for Parents - DAP)
Who: A. Parents of U.S. citizens or lawful permanent residents as of the date of the announcement, who have been in the U.S. since January 1, 2010 and who are not enforcement priorities. OR
(DACA PLUS, GRANDE, or whatever they will call it)
B. Those who arrived in the U.S. before turning 16 years of age AND before January 1, 2010, no matter what their age is today.
Applicants must have been in the U.S. for at least five years to qualify and must document their identity, relationship to a U.S. citizen or lawful permanent resident, and show that he or she has lived in the U.S. continuously for five years or more. Applicants must pass background checks and meet the other qualifications.
Benefit: Temporary relief from removal/deportation. Work authorization may be requested in three year increments and applicable taxes on earnings must be paid. No path to permanent residence or citizenship.
Business Based Immigration
1. High skilled workers (H-1B) waiting for immigrant visa numbers based on approved petitions - Workers will be able to port to other jobs with greater ease.
2. Certain H-4 spouses – They will be able to apply for work authorization if their H-1B spouse has an approved I-140 petition. (This is expected to apply in December or January via regulation.)
3. Foreign entrepreneurs – Qualifying foreign entrepreneurs meeting requirements for creating jobs, attracting investment, and generating revenue in the U.S. will be able to be paroled in the U.S. or paroled in place if in the U.S.
4. Entrepreneurs, Researchers, Inventors, and Founders – will be eligible for national interest waivers of a labor certification to seek permanent residence in the U.S.
5. Approved Employment Based I-140 Beneficiaries Waiting for Immigrant Visas – will be able to pre-register for adjustment of status (I-485) to be able to obtain advance parole for international travel and work authorization.
6. L-1B specialized knowledge interpretative guidance will be released.
7. PERM labor certification process will be modernized/ streamlined. There may be a provision to allow a harmless error exception on filings.
Optional Practical Training (OPT) – will be expanded and oversight by the university will apparently be increased for the OPT period. The STEM list of fields may be expanded for extended OPT. The term of OPT will also be increased.
Family Based Immigration
1. Spouses and Children of Legal Permanent Residents – will be able to obtain provisional waivers of the unlawful presence bar (I-601A). In addition, the definition of “extreme hardship” to qualify for the waiver will be expanded.
2. Families of those Desiring to Enlist in the Armed Forces – will be able to qualify to adjust to permanent residence via an expansion of the parole in place program for the military.
And of course –
1. Focus Revised - will focus Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) upon suspected terrorists, convicted felons, convicted gang members and those apprehended at the border. (Those who enter the U.S. illegally after January 1, 2014 and those who, after January 1, 2014, fail to leave the U.S. who are under a removal order or who return unlawfully after removal.)
2. Prosecutorial discretions guidelines will be revised.
Kathleen Campbell Walker is a shareholder with the Cox Smith law firm. www.coxsmith.com
(The contents of this publication do not constitute legal advice and are not guaranteed to be correct, complete, or up-to-date.)