Immigration Accountability Executive Actions

November 21, 2014
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On November 20, 2014, President Obama announced the Immigration Accountability Executive Actions. This document summarizes the highlights and key provisions of these executive actions based on information available as of November 21, 2014. While many details about the executive actions are now known, we expect further details will be provided through the formal rule-making process and other means in the coming weeks.

Here are the key components of these executive actions:

1. Deferred Action for Parents (DAP) of U.S. Citizens and Lawful Permanent Residents:
Deferred Action = temporary protection from deportation and a work permit for 3 years (may be renewed)
○ Individuals who:

  • Are the parent of a U.S. Citizen or lawful permanent resident born on or before November 20, 2014;
  • Have continuously resided in the U.S. since before January 1, 2010;
  • Are physically present in the U.S. on November 20, 2014 and on the date they apply for DAP;
  • Have no lawful immigration status on November 20, 2014;
  •  Are not an enforcement priority (pass a background check); and
  • Present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate

○ All individuals who meet the criteria are eligible whether or not they are already in removal proceedings or subject to a final order of removal
○ Plan to begin accepting applications by May 2015
○ This program confers no substantive rights, immigration status, or pathway to citizenship.
○ Parents of DACA recipients will NOT be eligible to apply

2. Expand Deferred Action for Childhood Arrivals (DACA):
○ Alters the requirements for DACA, which has been in place since June 15, 2012
○ Originally applicant had to have arrived by June 15, 2007 – will now be by January 1, 2010
○ Originally applicant had to be under 31 on August 15, 2012 – age requirement will now be eliminated
○ Originally DACA was valid for 2 years – will now be valid for 3 years effective November 24, 2014
○ Plan to implement these changes by February 2015
○ This program confers no substantive rights, immigration status, or pathway to citizenship.

3. Implement much needed reforms for Business Immigration and Entrepreneurs:
○ USCIS will work with the State Department to modernize, improve, and clarify the immigrant and nonimmigrant visa system to grow our economy and create jobs. We expect this to include: making optimal use of visa numbers available under existing law; considering whether derivative beneficiaries should be counted toward the visa quota and whether past unused visa numbers can be recaptured; and making it possible for individuals who have an approved immigrant visa petition, but whose process is currently stalled due to visa quota backlogs, to proceed with filing their Green Card application, which would be a major benefit for advanced degree holders from India and China, their families, and U.S. employers.
○ USCIS will finalize a regulation to provide work permits to the spouses of certain H-1B visa holders who have
applied for a Green Card.
○ Length of time permitted on Optional Practical Training (OPT) will be extended for STEM graduates, and the degree programs that are eligible for this will be expanded. [But the action also directs that steps should be taken “to ensure that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.” Does this mean we can expect prevailing wage or recruitment requirements? Stay tuned.]
○ The DOL will initiate a review of the PERM labor certification program and relevant regulations to determine how it could be modernized to be more responsive to changes in the national workforce. This will include exploring the feasibility for efficiently addressing nonmaterial errors on the application.
○ Certain foreign inventors, researchers, and founders of start-up enterprises will be eligible for National Interest Waivers by clarifying the standard for benefiting the U.S. economy.
○ Certain inventors, researchers, and founders of start-up enterprises who may not yet qualify for a NIW, 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, will be eligible on a case-by-case basis for parole into the U.S. (if outside the U.S.) or parole-in-place (if in the U.S.).
○ The types of job changes that constitute a “same or similar” job will be clarified.
○ USCIS will provide clear, consolidated guidance on the meaning of “specialized knowledge” for L-1B visas.

4. Interagency Working Group on Worker Protection:
○ An interagency working group [comprised of federal immigration enforcement agencies and federal agencies responsible for worker protections, including DOL, DHS, DOJ, EEOC, and NLRB] will be established to ensure the consistent enforcement of federal labor, employment, and immigration laws.

5. Expand the I-601A Waiver:
○ Currently only the spouses and children of U.S. Citizens are eligible for the Provisional Unlawful Presence Waiver – spouses and children of lawful permanent residents will now also be eligible.
○ USCIS will provide additional guidance on the definition of “extreme hardship” including considering a criteria by
which a presumption of extreme hardship may be determined to exist.

6. Expand Parole-in-Place (PIP):
○ PIP will be expanded to include families of individuals trying to enlist in the armed forces – some branches of the
military ban applicants who have undocumented family members.

7. Apprehension, Detention, and Removal Priorities:
○ Three enforcement priorities have been named:

  •  Priority 1 – threats to national security, border security, and public safety (terrorism, espionage, danger to national security, those apprehended at the border, gang members, felons, and aggravated felons)
  • Priority 2 – misdemeanors and new immigration violators (those convicted of three or more misdemeanors [other than minor traffic offenses]; those convicted of a “significant misdemeanor” [domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or an offense for which the individual was sentenced to 90 days or more in jail, not including suspended sentence]; anyone who entered or re-entered illegally after January 1, 2014; and those who have significantly abused the visa or visa waiver programs)
  • Priority 3 – other immigration violations (those who have been issued a final order of removal on or after January 1, 2014).

○ Specifies factors to be considered when making judgments about prosecutorial discretion
○ This guidance is effective January 5, 2015
○ “Secure Communities” program is discontinued and replaced with the “Priority Enforcement Program (PEP)”
○ Requests for Detention to be replaced by Requests for Notification in most cases

8. Border Security:
○ Commit and better coordinate additional resources for enforcement at U.S.-Mexico border

9. Miscellaneous Points:
○ None of those receiving immigration benefits under DACA or DAP will be eligible to receive government subsidies for health care under Medicare or the Affordable Care Act.
○ No expansion of visas for migrant farm workers or the H-1B visa program
○ Beware of immigration scams! It will be a few months at least before anyone is able to file for DAP and DACA. Obtain advice from qualified sources such as experienced immigration attorneys and legitimate community- based organizations.
NOTE: This document is for information purposes only and is not intended to be legal advice unless you schedule a consultation with Tim Wheelwright to review and discuss this information.

Tim Wheelwright is a shareholder in the Salt Lake City office of Durham Jones & Pinegar. For the past 17 years he has been advising individuals and businesses on routine and complex immigration issues and is frequently tapped to advise community leaders and policy makers about immigration policy and is featured as a source in local media. If you would like to schedule an appointment to speak with Tim about these executive actions or U.S. immigration laws, please contact him at (801) 415-3000, twheelwright@djplaw.com @TimWheelwright or LinkedIn.

 

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