Immigration Reform

On November 20, 2014, the Obama administration issued several executive orders with the purpose of helping the immigrant community in the United States of America. These executive orders impact several million persons in the United States. This executive program is not an amnesty.

The Immigration Administrative Reform of 2014 implements major changes through policy memorandum. These new policy guidelines provide for the following:

Deferred Action for Parental Accountability (DAPA)
USCIS will create a new deferred action process, similar to DACA, for individuals who (1) have a U.S. citizen or LPR son or daughter (of any age) as of November 20, 2014; (2) have been continuously present in the U.S. since before January 1, 2010; and (3) were physically present in the U.S. on November 20, 2014 and are present at the time of requesting DAPA. Such individuals must pass background checks and must not be an enforcement priority under the new memorandum. DAPA will be granted for a three-year period. USCIS expects that it will begin accepting DAPA applications within 180 days of November 20, 2014.
Expansion of Deferred Action for Childhood Arrivals (DACA)
The current Deferred Action for Childhood Arrivals (DACA) program will be revised as follows: The current age cap (31 as of the date of the original DACA announcement) has been eliminated and the eligibility cut-off date by which an applicant must have been in the United States will be moved to January 1, 2010. DACA and work authorization will be granted for 3 years. The new three-year time period will apply to pending DACA renewal applications.
Expansion of the Provisional Waiver Program
USCIS to expand the I-601A provisional waiver application process. At present, only immediate relatives (spouses and children of U.S. citizens and parents of adult U.S. citizens) who can demonstrate extreme hardship to a U.S. citizen spouse or parent are eligible to apply for a provisional waiver. USCIS will “expand access to the provisional waiver program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available.” Though details remain to be seen, this would presumably include any family-based preference category beneficiary with an approved I-130 and a current priority date who can demonstrate “extreme hardship” to a citizen or LPR spouse or parent, as set forth under INA §212(a)(9)(B)(v).
Advance Parole Consistency
DHS Secretary Johnson has asked DHS General Counsel to issue written guidance clarifying that the holding in Matter of Arrabally-Yerrabelly (that travel on advance parole is not a “departure” within the meaning of INA §212(a)(9)(B)(i) and therefore does not trigger the three and ten year bars for unlawful presence) applies to all cases. This guidance will apply to USCIS, CBP, and ICE.
Families of U.S. Armed Forces Members and Enlistees
USCIS to work with the Department of Defense to expand parole-in-place (PIP) to encompass spouses, parents, and children of U.S. citizens and lawful permanent residents who seek to enlist in the U.S Armed Forces. USCIS is also to consider the availability of deferred action for undocumented family members of members and veterans of the Armed Forces, who would otherwise be eligible for PIP but for having been inspected and admitted to the United States.
Employment Based Immigration Initiatives
  • Modernizing the Employment-Based Immigrant Visa System. USCIS and DOS should work to improve the system for determining when immigrant visas are available to applicants during the fiscal year. The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people.

  • Worker Portability. USCIS to clarify “the types of job changes that constitute a ‘same or similar’ job” and make it clear that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permitted.

  • Research & Development. USCIS has been instructed to propose a program that would permit parole status for inventors, researchers, and founders who have been awarded “substantial U.S. investor financing” or who “otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.”

  • Employment Authorization for H-4s. “USCIS is about to publish the final rule” on H-4 employment authorization. We understand that the final rule will be published in December 2014 or January 2015.

  • L1-B immigrant petitions. USCIS to issue the long-awaited L-1B policy memorandum which should provide “clear, consolidated guidance on the meaning of ‘specialized knowledge.’”

  • “Optional Practical Training” (OPT) for Foreign Students and Graduates from U.S. Universities. USCIS and ICE to “to expand the degree programs eligible for OPT and extend the time period and use of OPT for STEM students and graduates consistent with law.” We understand that among the changes under consideration is allowing a STEM OPT extension.

  • DOL Certification of U and T Visas. In early 2015, the Wage and Hour Division of the U.S. Department of Labor will begin certifying T visa applications for trafficking victims. In addition, WHD will expand its existing U visa certification program by adding three additional qualifying criminal activities: extortion, forced labor, and fraud in foreign labor contracting.
Detention & Removal of Undocumented Aliens in the United States
  • Priority 1: Threats to national security, border security, and public safety. This includes suspected terrorists, people apprehended at the border, intentional gang participants (as well as those who were convicted of a gang-related offense), and convicted felons (excludes state/local status-related offenses).

  • Priority 2: Misdemeanants and new immigration violators. This includes people convicted of a “significant misdemeanor” or three or more misdemeanors arising out of three separate schemes (excludes traffic and status-related violations); people who entered unlawfully after January 1, 2014; and people 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.

Secure Communities
Secure Communities will be discontinued and replaced by a Priority Enforcement Program (PEP). The new program will continue to rely on fingerprint data submitted to the FBI during bookings by state and local law enforcement agencies.

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