By Attorneys Eric R. Welsh, Nancy E. Miller, Robert L. Reeves
On November 20, 2014, President Obama announced that he would take executive action to address issues related to undocumented immigrants, “brain-drain” from lack of employment opportunity for foreign students, border security, and many other areas that have yet to be resolved through Congressional legislation. The following day, the White House issued two Presidential Memoranda, setting forth his plans in greater detail, and adding additional directives to help reform our “broken immigration system,” to quote the President.
The President announced a new program known as Deferred Action for Parental Accountability (DAPA). DAPA benefits include a three-year deferral of removal and three-year work authorization. Requirements include: (1) a U.S. citizen or permanent resident son or daughter (of any age) as of November 20, 2014; (2) continuous presence in the U.S. since before January 1, 2010; (3) physical presence in the U.S. both on November 20, 2014 and at the time of making the request for DAPA. Applicants must also pass a criminal background check, and must not fall within one of the three “priority” groups described below. USCIS expects that it will begin accepting applications for DAPA within the next 180 days.
The President also announced revisions to the existing program known as Deferred Action for Childhood Arrivals (DACA). DACA will be revised to eliminate the age cap (currently 31 years old as of the original DACA announcement), and the eligibility cut-off date will be moved forward from June 15, 2007 to January 1, 2010. That is, persons who were otherwise eligible for DACA but who had entered after June 15, 2007 (but before January 1, 2010), or who had turned 31 before DACA was announced, can now apply for DACA. DACA will now be issued for periods of three years instead of the current two-year period. USCIS expects that it will begin to accept applications under the expanded program within the next 90 days.
In conjunction with Secretary Jeh Johnson of the Department of Homeland Security (DHS), the President outlined a number of other significant changes to help streamline and improve visa processing, meet visa demand, and modernize the information technology infrastructure underlying the visa processing system. The President and the Secretary have proposed a correction to visa accounting such that only one visa “number” will be exhausted per principal applicant, regardless of derivative beneficiaries. This way, for example, a family of five would only count as one rather than five for the purposes of the quota numbers, thereby reducing overall visa backlog. In addition, the agencies that issue the visas have been directed to improve issuance and accounting in order to ensure that unused visas from prior years are recaptured for the current year, thereby substantially reducing or potentially eliminating visa backlog.
The President and Secretary Johnson also announced several new directives to assist employment-based immigrants and nonimmigrants with the intent of assisting employers, growing the economy, and creating U.S. jobs. USCIS will take action to improve the issuance of employment-based visas to eligible applicants, including providing benefits to applicants caught in the quota backlog. Specifically, USCIS will accept adjustment of status applications from applicants caught in the backlog, and issue work authorization and travel permits which can be renewed until the visa numbers are current, effectively providing the benefits of permanent residency to the estimate 410,000 applicants caught in the backlog.
In addition, USCIS will issue a “final rule” regarding work authorization for H-4 derivative beneficiaries in December 2014 or January 2015. It will expand the degree programs for students eligible for OPT and extend the time period for OPT for students with degrees in science, technology, engineering, and mathematics (STEM). It will also clarify and expand the standards for issuance of the EB-2 national interest waiver (NIW), and will propose a program to provide parole status to investors, researchers, and entrepreneurs. USCIS will clarify the definition of “specialized knowledge” for L-1B visa applicants. USCIS will issue a policy memorandum to alleviate uncertainty regarding the term “same or similar” job for purposes of employment-based portability. The Department of Labor (DOL) will review the PERM process for employment-based petitions with an eye towards modernizing and streamlining the process in response to realities of the modern workforce.
The President and Secretary Johnson also issued several directives to improve the execution of existing programs. For example, the President has directed USCIS to expand access to the Provisional Waiver Program (I-601A) to include all statutorily eligible classes for whom an immigrant visa is presently available, not just immediate relatives. In addition, USCIS will provide additional guidance to clarify the standard of “extreme hardship.” DHS will issue guidance to clarify that travel on advance parole is not a “departure” for the purpose of the unlawful presence bar and, therefore, does not trigger the 3 or 10-year bars to admissibility. The President and the Secretary have directed the Department of Defense (DOD) to expand the parole-in-place (PIP) program to include spouses, parents, and children of U.S. citizen and lawful permanent residents seeking to enlist in the Armed Forces, and to provide deferred action to those family members who are undocumented but who were inspected and admitted into the United States.
The reforms summarized above are wide-ranging and far-reaching. They are only the initial details of programs and initiatives that will be fleshed out in the coming months. These life-changing reforms signal an exciting and transformative time for U.S. immigration policies and procedures. Truly, something to be thankful for at this or any time of year!