Brief Description of President Obama’s Executive Action on Immigration

On November 20, 2014, President Obama announced his executive action on immigration. Below, you can find information on what the executive order entails, when it will be implemented and who qualifies for it. Very importantly, please note that currently USCIS is not accepting any type of applications for the recently announced measures. Potential applicants are advised to not trust anyone who offers to file applications or petitions on their behalf before these programs become available. For more information on potential immigration scams and how to protect yourself, you can access www.stopnotariofraud.org. For updates on the newly announced programs you can consult the United States Citizenship and Immigration Services (USCIS) website at www.uscis.gov/immigrationaction.

1. New Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)

Under the DAPA program, an undocumented individual who has a US citizen or lawful permanent resident child will be able to apply for deferred action and be eligible for a work permit if he or she:
1) Is the parent of a U.S. citizen or lawful permanent resident child who was born on or before the date of the announcement (November 20, 2014).
2) Has been residing in the United States since January 1, 2010.
3) Is able to successfully pass a criminal background check.

Deferred action is a temporary stop on removal (deportation) and does not give any legal immigration status. Individuals granted relief under DAPA will be able to stay in the US and get a work permit valid for three years.
Currently, USCIS is not accepting applications under the program. It is estimated that USCIS will start to implement the new DAPA program in about six months from the date of the announcement, i.e., on May 19, 2014.

2. Amendment/Expansion of Deferred Action for Childhood Arrivals (DACA)

The following changes have been made to the current DACA program:
1) There will no longer be an age limit for those wishing to apply for DACA (under the initial DACA program, an applicant must have been under the age of 30 to be eligible to apply).
2) An applicant must have resided in the United States since January 1, 2010 (prior cut-off date was June 15, 2007).
3) A successful DACA applicant will obtain deferred action and authorization to work for three years (as opposed to two years as provided under the initial DACA program).

USCIS will start to implement the expanded DACA program in about three months from the date of the announcement, i.e. on February 19, 2014. Currently, USCIS is not accepting applications under the new criteria. However, USCIS is looking into ways to extend the validity of the work authorization documents issued for only two years under the initial DACA program.
3. Provisional Waivers of Unlawful Presence

Under the current regulations, only immediate relatives (spouses, children and parents) of U.S. citizens can apply for a provisional waiver of unlawful presence. A waiver of unlawful presence is needed when an alien is ineligible to adjust status (obtain a green card) in the U.S. because he or she has accrued more than 180 day of unlawful presence while in the United States. Before March 4, 2013, all aliens who needed waivers of inadmissibility for unlawful presence had to first depart the United States and apply for an immigrant visa abroad, and then, once found inadmissible, they could move on to the next step – applying for a waiver of inadmissibility. Unfortunately, due to the lengthy nature of the waiver process, many families had to stay separated for long periods of time, sometimes for years, before the alien was able to return to the U.S. on an immigrant visa. Beginning March 4, 2013, immediate relatives of American citizens had the option of applying for a provisional waiver here in the United States, before traveling abroad for the immigrant visa interview.

President Obama’s executive action expands the provisional waiver process and permits also sons and daughters of U.S. citizens, as well as spouses and sons and daughters of lawful permanent residents to obtain a waiver without having to first depart the United States. According to the USCIS website, this new rule will be implemented upon the issuance of the new guidelines and regulations.
Hopefully, these regulations will also clarify in a constructive and objective manner the “extreme hardship” standard (currently, “extreme hardship” is a very subjective concept and therefore its clarification is very much needed).

4. Clarification of Advance Parole

The Department of Homeland Security (DHS) has issued a Memorandum providing further guidance on the implications of traveling abroad on “advance parole.” “Advance parole” is a permission to travel that is granted by USCIS on a discretionary basis to aliens in temporary status or with certain immigration applications pending. The memo clarifies that a person who accumulated more than 180 days of unlawful presence in the United States and obtained “advanced parole” will not be considered to have “departed” the country, and therefore, the 3- or 10- year bar will not apply to them, despite having accumulated the unlawful presence that would technically trigger the inadmissibility bar. The memo provides guidance for the uniform application of the decision issued by the Board of Immigration Appeal (BIA) in the Matter of Arrabally, 25 I. & N. Dec. 771 (BIA 2012), which held that travel on advanced parole should not be interpreted as a “departure” within the meaning of section 212(a)(9)(B)(i) of the INA. According to the Memorandum, the clarification “will ensure consistent application of the Arrabally decision across the Department, and provide greater assurance to individuals with advanced parole of the consequences of their travel.”
5. Other Measures Related to Business Immigration and a More Efficient Allocation of Immigrant Visas

Also, on November 20, 2014, President Obama announced other important measures, such as: (1) implementation of a more efficient allocation of immigrant visas and creation of a simplified Visa Bulletin system; (2) providing work authorization for spouses of H-1B visa holders who have green card applications pending; (3) extending the use of Optional Practical Training (OPT) for foreign students; (4) clarifying the meaning of “specialized knowledge” in the context of the L-1B (Intracompany transferee) program.