Additional Information on the President’s Executive Order

By Attorney Nancy E. Miller

 In our last article, we talked about changes in DACA (Deferred Action For Childhood Arrivals) and explained the basics and some of the potential problems or issues in DAPA (Deferred Action for Parental Accountability).  To reiterate, there is no longer an age cap on DACA and applicants must have arrived in the U.S. while under the age of 16 no later than 1/1/2010. For DAPA, the applicant must have been the parent of a United States Citizen (USC) or Legal Permanent Resident (LPR) as of 11/20/14 and have been in the U.S. in unlawful status as of that date. 

Certain criminal convictions will make applicants ineligible for either one or both forms of relief.  However, sometimes convictions can be vacated for rehabilitative reasons or due to legal error.  These various forms of post conviction relief may help one who is currently ineligible for relief to qualify.

Final removal orders as of 1/1/2014 will make the applicant ineligible for DAPA.  Removal orders become final at various different times.  If the alien waives his right to appeal the order, it becomes final the day it is issued.  If the alien reserves the right to appeal but fails to timely do so, the order becomes final on the day after the appeal needed to be filed (i.e. the 31st day after the order is issued).  If the appeal is filed but dismissed by the Board of Immigration Appeals, the removal order becomes final on the date of dismissal.  If one receives voluntary departure but fails to timely depart, the removal order becomes final on the date after the immigrant should have left the U.S. 

Reopening the immigration court proceedings may result in a final order being vacated.  Withdrawing a pending appeal will backdate the date of the final removal order to the date the order was issued.  This may result in a final order that is dated pre 1/1/2014.  But it may also mean that the alien is giving up an appeal that could actually result in a green card. 
Post conviction relief and final removal order vacating strategies are not available in all circumstances.  And even when they are available, they have positive and negative ramifications.  No one should consider these avenues without thoroughly discussing them with an experienced and knowledgeable immigration attorney.

Many people want to know if the Executive Order will allow them to temporarily leave the United States.  In some instances, it has been years, if not decades, since they have seen their family.  Those with DACA (and we anticipate that those with DAPA) will be eligible for advance parole in some specific circumstances.  Those traveling on advance parole will not trigger the 3 or 10 year unlawful presence bar upon leaving the U.S.  They will be permitted to reenter the country at the end of their trip.  Moreover, because they will have entered with inspection, they may be eligible to adjust their status (obtain a green card in the United States) if they become eligible under a family or employment-based petition. 

However, advance parole will not be issued simply upon demand.  They will not be issued for purposes of vacation or honeymoons or visiting family for the holidays.  The applicant will have to prove that the trip outside the U.S. is necessary for humanitarian, educational or employment reasons.  The Citizenship and Immigration Services (CIS) has made it clear that it intends to be very strict in adjudicating these requests.  Explanation as to why the applicant qualifies and strong documentation supporting the request will be essential in getting the request approved.

It is not uncommon for those without papers to work using a name that is not their own or a social security number that they did not get from the Social Security Office.  When they receive their first piece of legitimate identification, their Employment Authorization Card, they may have mixed feelings.  They will want to return to their own name.  They will want to work under a legitimate social security number.  And they will be entitled to get this document.  But they will also be frightened to admit to their employer that they have provided false information over the course of years.  Various states have different laws concerning these issues.  In California, employers cannot discriminate against a non-citizen as long as he has the right to work.  Moreover, when the employee obtains documentation showing the legal right to work, the employer will not have problems for learning retrospectively that the employee did not previously have the right to work. 

 It is an exciting time for those who have lived in the shadows for too long.  Despite the many questions that remain, it is an opportunity for those who have had none.   Seek the assistance of an experienced and knowledgeable immigration lawyer to find out if this relief is available to you.