Obama’s Immigration Executive Actions – Are You Covered?

By: Aurora Vega-Buzon, Esq.

President Obama announced on November 20, 2014 his executive actions on immigration which, among others, include the following: outlining his administration’s enforcement priorities; expanding the Deferred Action for Childhood Arrivals (DACA);  creating a new deferred action program for parents (DAP) of U.S. citizens (USCs) or Legal Permanent Residents (LPRs);   Immigration Court reforms and streamlining, including closing of pending cases for individuals who are low priorities; expanding the provisional waiver program to include spouses and children of LPRs;

streamlining the process for petitioning foreign workers; advancing the filing of adjustment of status applications for individuals who have approved employment-based immigrant petitions; issuance of work authorizations to spouses of H-1B workers; extending the Optional Practical Training (OPT) Program for foreign students who graduated from U.S. universities in the fields of science, technology, engineering and mathematics (STEM); enhancing options for foreign investors; expanding the Parole-in-Place to include families of individuals seeking to enlist in the military.

The American Immigration Lawyers’ Association (AILA) released a summary of the salient points of President Obama’s immigration executive actions.

Enforcement Priorities. President Obama said his administration’s enforcement priorities will focus on removing aliens – foreign nationals and legal permanent residents – who are threats to national security, border security, and public safety. These 3 groups will be prioritized for removal: (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 recent border crossers (those who entered after January 1, 2014); and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal.

Deferred Action for Parents and Children. Two (2) deferred action initiatives expected to benefit an estimated 4.4 million undocumented individuals are: (1) the Deferred Action for Parents (DAP), which is new; and (2) the expansion of Deferred Action for Childhood Arrivals (DACA), a program which started in September 2012. The DAP covers parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010 and who pass background checks and pay back taxes – they will be eligible to request temporary relief from deportation and obtain work authorization(deferred action) for a 3-year period. However, DAP does not provide deferred action to parents of DACA recipients. On the other hand, the Department of Labor (DOL) will step up worksite enforcement and crack down on companies who hire undocumented workers.

The DACA expansion will remove the age cap requirement (currently, you must be under 31 y/o on June 15, 2012 to be able to apply), and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010. Thus, individuals can apply if they entered before January 1, 2010, regardless of how old they are today. It will also be granted for 3 years, including those with pending renewal applications. The expanded DACA should be up and running in 90 days (filing of applications) and deferred action for parents in 180 days.

Pending Proceedings in Immigration Court.  The Department of Justice will review cases currently pending in Immigration Courts to see who meets the new enforcement priorities and close cases of individuals with low priorities.

Timing of Filing for Adjustment of Status. The filing of adjustment of status applications will be advanced for individuals whose employment-based immigrant petition has been approved but who are caught in the quota backlogs, to permit them to obtain the benefits of a pending adjustment.

Employment Authorizations for H-1B Spouses. The regulation to allow H4s to apply for employment authorization will be finalized in December or January.

Business Immigration Changes. There will be several business immigration improvements: certain investors will be eligible for parole into the U.S., or be granted parole in place if already in the United States, for creating jobs, attracting investment, and generating revenue in the U.S.. Also, entrepreneurs, researchers, inventors, and founders will be eligible for national interest waivers.

Optional Practical Training (OPT) for Foreign Students. The length of time in OPT following graduation for STEM graduates will be expanded. Other changes, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field is under consideration.

PERM/Labor Certification. A full rulemaking will be undertaken to modernize the PERM program and streamline petitioning process for foreign workers while ensuring American workers are protected.

Reducing Family Separation for those waiting to obtain LPR status. Expanding the existing program on provisional waivers to allow spouses and children of lawful permanent residents (not just U.S. citizens) to apply for provisional waivers for certain violations from within the U.S. before departing for their visa interviews abroad.

U/T Visas. Expanding immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations. Three more types of offenses will be added to the list of offenses for which the Department of Labor (DOL) can certify for U status.

Parole-in-Place for Families of Armed Forces.  To ensure U.S. citizens can serve, families of individuals trying to enlist in the armed forces can utilize parole-in-place to ensure legal status, as some branches of the military ban applicants who have undocumented family members.

Warning. AILA also urges the public to wait until details of the executive actions are released, and warns against notarios and other unauthorized consultants who promise immediate action in order to get your money. The wrong help can harm you. Talk to a qualified immigration attorney.

Atty. Aurora Vega-Buzon is a partner in Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; auvega@ctvattys.com.