Executive Actions on Immigration Accountability

On November 20, 2014, President Obama announced a series of executive actions designed to improve U.S. border security; preserve family unity while holding undocumented immigrants accountable for background checks and taxes; and boost the U.S. economy through the reform of legal immigration. Please note that these initiatives have not yet been implemented and no applications for benefits can be submitted until the Agencies provide guidance on implementation and/or regulations are published.

1. Crack Down on Illegal Immigration at the Border

The President’s actions will centralize border security command-and-control and establish clear interior enforcement priorities based on threats to national security, border security and public safety. To execute these actions, Secretary Johnson has announced a plan to shift additional Border Patrol agents and U.S. Immigration and Customs Enforcement (ICE) personnel to the Southwest border of the United States. The Department of Justice has also announced a series of reforms that will re-order and streamline the Immigration Court docket based on the President’s enforcement priorities.

2. Prioritize the Deportation of Felons, not Families

In line with the President’s enforcement priorities and in support of family unity, the executive actions also introduce new and expanded removal and enforcement relief programs for certain undocumented persons present in the United States:

• Expansion of Deferred Action for Childhood Arrivals (DACA) Program: Under the current program introduced in 2012, certain young persons without immigration status are eligible to request consideration for deferred action and work authorization for a period of two years, so long as they were born prior to June 15, 1981 and have maintained continuous residence in the United States since June 15, 2007. The expanded program will remove the upper age restriction, shift the continuous residence requirement to January 1, 2010, and extend the deferred action and employment authorization period to three years. The expanded program is expected to take effect 90 days after the November 20, 2014 announcement.
• New Deferred Action for Parental Accountability (DAPA) Program: This new program will provide an avenue for deferred action and work authorization for undocumented parents of U.S. Citizens and Legal Permanent Residents (LPRs). To be eligible for consideration under DAPA, undocumented individuals must have maintained continuous residence in the United States since January 1, 2010 and have no criminal history within the President’s interior enforcement priorities. Applicants for benefits under DAPA will be required to undergo thorough criminal background checks and pay taxes. The new program is expected to take effect 180 days after the November 20, 2014 announcement.
• Expansion of Provisional Waivers of Unlawful Presence Based on Extreme Hardship: Under the current policy announced in 2013, only spouses and minor children of U.S. Citizens are eligible to obtain a provisional waiver of unlawful presence if an immigrant visa is available. The executive action intends to expand the list of eligible waiver applicants to include the sons and daughters of U.S. citizens, as well as the spouse, sons and daughters of LPRs. The action also seeks to clarify the “extreme hardship” standard that must be met to obtain the waiver. The expanded program will not take effect until the issuance of new guidelines and regulations.

3. Streamline Legal Immigration to Grow the Economy and Create Jobs

In addition to the border security and removal relief actions, the President has also announced initiatives aimed at supporting economic growth and job creation in the United States by supporting the country’s high skilled businesses and workers. None of these actions will take effect until the issuance of necessary guidance and regulations

Several executive actions will focus on improving employment-based temporary visa programs:

• L-1B Specialized Knowledge: U.S. Citizenship and Immigration Services (USCIS) plans to issue a policy memorandum to help eliminate the uncertainty that has developed in recent years with respect to the L-1B program. The memorandum will provide clear, consolidated guidance on the meaning of “specialized knowledge” in order to bring greater coherence and integrity to the L-1B program, improve consistency in adjudications, and enhance confidence in the program.
• OPT Reformation and Expansion: The Department of Homeland Security (DHS) plans to promulgate rules to expand the degree programs eligible for Optional Practical Training (OPT), extend the time period and use of OPT for foreign students and graduates in the Science, Technology, Engineering and Math (STEM) fields, and require stronger ties between OPT students and their academic institutions to ensure their practical training furthers their full course of study.
• H-4 Employment Authorization: DHS is also finalizing a new rule to provide work authorization to certain spouses of H-1B holders in the green card process. This will be particularly beneficial for the nationals of countries with severely retrogressed visa numbers, such as India and China.

DHS will also clarify and expand immigration options for foreign entrepreneurs, and streamline the green card process for greater efficiency, predictability and job mobility:

• Options for Foreign Entrepreneurs: In an effort to create jobs, attract investments and generate revenue in the United States, USCIS will be proposing a program to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises. This new program is intended to apply to entrepreneurs who might not yet qualify for a national interest waiver, 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. USCIS also intends to issue new guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S economy.
• Immigrant Visa and Adjustment of Status Reforms: In a series of related reforms aimed at streamlining the green card process, USCIS plans to work with the Department of State (DOS) to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas. USCIS also plans to work with the DOS to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

In addition, USCIS plans to provide clarity on adjustment of status portability provisions to remove unnecessary restrictions on natural career progression and general job mobility. USCIS will also issue a policy memorandum that will provide additional agency guidance with respect to the types of job changes that constitute a “same or similar” job under current law. These new policies are intended to provide relief to workers facing lengthy delays in adjustment of status processing.

Similarly, the Department of Labor (DOL) has announced plans to review the permanent labor certification (PERM) program, which has not been examined comprehensively or modified since its inception ten years ago.

For more information please refer to the agency directives and relevant FAQs published on the USCIS website.

For specific questions or legal advice, please contact your immigration professional at Gibney, Anthony & Flaherty, LLP, or email info@gibney.com.