By Attorneys Ben Loveman & Nancy E. Miller
In November of 2014, President Obama announced a number of exciting new immigration policies that will be rolled out in 2015. In his recent State of the Union Address the President confirmed his commitment to these new programs through a pledge to veto any attempts by Congress to block the new and highly beneficial policies. The President’s pledge is backed by public support with recent polls confirming that a majority of Americans are in favor of Obama’s immigration policy. The President’s overall approval has risen by almost 10% during this same time. The President’s rising popularity coupled with his steadfast backing of his new policies is rightfully a source of confidence for immigrant communities that his policies will stay in effect and continue for future years.
The newly announced policies have the potential to provide major immigration benefits to millions of documented and undocumented persons inside and outside the United States and to grow our economy and create jobs. The policies announced include: (1) Deferred Action and Parental Accountability (DAPA) program; (2) Expansion of Deferred Action for Childhood Arrival (DACA) program; (3) Major expansion of the eligibility for the provisional waiver program and a lowering of the ‘extreme hardship’ standard for waiver applications; and (4) Possible modification to the immigrant visa allocation system to reduce visa-wait backlogs in all preference categories.
The new DAPA program will provide a three-year work authorization and potentially the ability to later apply for travel authorization. To qualify you must have: (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; and (3) physical presence in the U.S. both on November 20, 2014 and at the time of making the request for DAPA. Applicants must not be considered a priority for removal. The DACA program will be expanded by the elimination of the upper age limit of 31 and by bestowing eligibility to applicants arriving in the United States before January 1, 2010 whereas previously eligibility required arrival before June 15, 2007.
The expansion of the provisional waiver program is a very exciting development. Previously, only those applying through their U.S. citizen spouse, parent or over 21-year old child were eligible. Under the new policy all preference categories will be eligible for the process. This means that adult children of permanent residents and spouses of permanent residents as well as beneficiaries of petitions filed by U.S. citizen siblings will be able to apply for the provisional waiver. The program still requires the applicant to establish extreme hardship to a spouse or parent who is a lawful permanent resident or U.S. citizen. However, the President announced a plan to reformulate the definition of ‘extreme hardship’ to clarify and lower the standard making it easier to satisfy the requirement. This development is especially exciting for applicants who may have been denied a waiver in the past as they would be able to reapply with a lower hardship standard.
The President also directed the Department of Homeland Security and Department of State to evaluate the current system of visa allocation and develop rules to ensure usage of all available visas and possibly redefine how applicants are charged against the numerical visa cap. One possible modification includes counting all family members applying together under one number instead of requiring a separate number for each person applying for a green card. This would greatly cut visa-wait times and would be a major boon for persons from countries like the Philippines and Mexico who have been waiting for years. Another proposed modification would allow greater flexibility for persons in the United States in non-immigrant status who are awaiting visa availability to file adjustment of status applications. Current policy only allows applications for adjustment of status filing when the visa bulletin indicates visa availability. Applicants wait years or even decades to file for adjustment of status. In the meantime they are tied to their petitioning-employer and not able to contribute and compete fairly in the economy. The proposed change allowing applicants to submit applications immediately would result in flexibility to change employers while they wait for true visa availability.
The President’s new policies are likely to become realities very soon. Expanded DACA should be available in February; DAPA applications will be accepted beginning in May; and the rest of the policies should be implemented in the coming year. If you or a loved could benefit from these programs it is essential that you consult with a reputable and experienced immigration attorney to evaluate your case and the best solution for your family.