More Developments on the President’s Executive Order

By Attorney Nancy E. Miller

Information is being released on a daily basis on the President’s Executive Order on immigration.  As new information come to light, we will pass it on. 

The biggest change in DACA (Deferred Action For Child Arrivals) is that there is no longer an age cap.  Those who otherwise qualified but were over the age of 30 when DACA was created are no longer barred from the protection.  In addition, the date by which children (those under the age of 16) must have arrived is now 1/1/2010.  And the EAD (Employment Authorization Document) will be issued for a 3 year period as opposed to the 2 year period that had previously been the case.  As some who are renewing their DACA status have found, DHS (Department of Homeland Security) has begun to issue the 3 year EADs.  CIS (Citizenship & Immigration Services) must begin to accept applications for those who qualify under the changed policy no later than 2/18/15 but they may begin to accept them earlier.  Whether the application fee remains at $465 remains to be seen.

The new relief for parents is called DAPA.  CIS must begin to accept these applications no later than 5/19/15 but they may begin to accept them earlier.  Whether the fee will be the same as that for DACA is not yet known.

To be eligible for DAPA, the applicant must have been in unlawful status as of 11/20/14.  That could include having arrived without papers or having lost status due to the expiration of the time permitted to remain in the U.S.  They must be the parent of a (USC) United States citizen or (LPR) lawful permanent resident as of 11/20/14.  Whether that means that the son or daughter (who can be over the age of 21) must have that status as of 11/20/14 or whether it just means that the parent/child relationship must exist on that date is still an open question.  The applicant must have been residing in the U.S. since 1/1/2010 and be physically present in the U.S. both on 11/20/14 and on the date the application is submitted.

Two significant questions exist regarding the parent/child relationship. 

One question is whether the benefit extends to those who are step-parents.  While the answer is not certain, it is probable that it does.  In that case, it is reasonable to assume that the same requirements in place for any step-parent-related immigration benefit will exist for this benefit as well.  That means that the step-parent/step-child relationship will have to have existed on 11/20/14.  It will also mean that the step-parent/step-child relationship will have to have legally come into existence before the child reached the age of 18.

The second question concerns fathers who are not listed on the birth certificate.  Very strong evidence will need to be submitted to show that the applicant truly is the father.  Whether it will be necessary to show that an actual relationship (over and above the blood ties) exists will also be learned as time goes by.  However, even if proof of such relationship is not mandatory, it is advisable to provide such evidence since the relief is given at the discretion of the officer who will want to see that the applicant is a person of good moral character.

That brings us to the next issue – who does not qualify despite having met the requirements listed above.  DHS Secretary Johnson has issued a memo called the Johnson Memo setting out the three priority categories for removal.  Those in the enforcement priorities do not qualify for DAPA.  The three categories are recent arrivals (who would not qualify anyway), those with criminal issues and those with orders of removal as of 1/1/2014. 

As with DACA, DAPA applicants are disqualified if they have a conviction for a significant misdemeanor, a felony or 3 not-significant misdemeanors. Significant misdemeanors include domestic violence, sexual crimes, firearms offenses, drug offenses and DUIs.  DAPA applicants are also ineligible if they have an aggravated felony conviction or a criminal conviction relating to an immigration violation (such as an undocumented alien in possession of a firearm).  Whether expungements will be recognized and whether juvenile offenses will be considered convictions is, again, an open question.

Those with removal orders that become final on or after 1/1/2014 may still qualify if the proceeding is reopened and the order vacated.  They may also still be eligible on a case by case basis at the discretion of DHS.

Those who believe they may qualify for either the new or old DACA or DAPA should consult an experienced and knowledgeable immigration lawyer to discuss the matter in depth. 

Next time – advanced parole and employer issues.