Emel Ersan Law Office - Immigration Law

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This is my summary of Obama’s New Law ( as written by AILA- American Immigration Lawyers Association). I hope it helps.

AILA’s Take on President Obama’s “Immigration Accountability Executive Action” Plan

On November 20,2014, President Obama announced a package of immigration reforms called the Immigration Accountability Executive Action. These reforms are :

  1. A deferred action program for part of the unauthorized population living in the US
  2. Changes to border security and enforcement
  3. Improvements to the adjudication of business and family petitions.

Why is it necessary for the President to act now?

Almost two decades have passed since a major reform was enacted to the country’s immigration laws. An estimated 11.5 million people are living in the country without legal status.  Most have families and jobs, but cannot work legally and must exist in the shadows. In the past several years, the Department of Homeland Security(DHS) has deported hundreds of thousands of parents of U.S citizens—approximately 23% of all deportations—causing painful separations of families. The program has the potential to register estimated population of up to 4.4 million people.

Legal Authority for Deferred Action

With finite enforcement resources, DHS cannot possibly deport everyone who is living unauthorized in the US. Such a mass deportation would also be an unwise policy choice as it, would gravely fracture American society and hurt the economy.

Risk of Applying

Each application will be decided on a case-by-case basis, and those who are denied deferred action could be at risk of deportation. The grant is temporary, so those granted the status could be at risk of deportation if the status expires. A new president technically has the authority to revoke deferred action status or to discontinue the program

Deferred Action for Parental Accountability(DAPA)

DHS will establish a deferred action program for the unauthorized parents of a U.S citizen or lawful permanent resident child born on or before Nov 20, 2014. To qualify individuals must have lived in the US more than five years. Deferred action will be granted for three years. Over four million people are estimated to be eligible to apply for this program.

Expansion of Deferred Action for Childhood Arrivals (DACA)

Under the expanded program, individuals are eligible if they entered the country before Jan 1, 2010, can demonstrate continuous presence in the US since then, and were under the age of 16 at the time they entered. New program has no age limit. The expanded DACA program will now grant deferred action for three years. It used to be two years.

ICE and CBP Role in the DACA and DAPA Programs

ICE and CBP must immediately begin to identify people in their custody who meet the expanded DACA or DAPA criteria. ICE must also review all pending removal cases, find people who meet these criteria, close their removal cases and refer them to USCIS for determination of eligibility.

Secure Communities and Detainers

Under the new policy, Secure Communities will no longer exist, though fingerprints will still be automatically shared with DHS. Based on the information received, ICE or CBP can then lodge a “detainer” that asks local law enforcement to keep that individual in jail for an additional two to five days.

New Enforcement Priorities and Prosecutorial Discretion Guidance

A memorandum that goes into effect Jan 5,2015, lays out new categories of enforcement priorities for both ICE and CBP such as apprehension at the border, national security threat, conviction for a “significant misdemeanor” etc. This memorandum also provides guidelines for when individuals who fall into each of these three priorities must and/or should be removed absent certain factors.


I-601A / Provisional Waiver expansion

Currently a significant number of immediate relatives of U.S Citizens who are present in the US are not eligible to apply for lawful permanent resident (LPR) status in the US because they entered the country unlawfully. The Provisional Waiver process allows eligible individuals to seek “Pre-approval” of an unlawful presence waiver while in the US. If approved, the applicants departs the US, goes back to his or her home country to attend a visa interview at the U.S Consulate; and if the State Department approves, the applicant is generally granted an immigrant visa without delay.

Reforms to the Employment Visa System

Many of the Administration’s proposed immigration changes have the potential to make our immigration system work much more effectively for the nation’s businesses by increasing access to needed workers. According to an analysis by the President’s Council of Economic Advisers, the President’s executive actions on immigration would boost economic output by an estimated 0.4 to 0.9 percent over ten years, corresponding to increases in GDP of $90 billion to $210 billion in 2024.

Foreign Entrepreneurs

The innovative contributions of alien entrepreneurs are critical to the continuing recovery and advancement of the US economy. While details are still not settled, the President’s program will allow certain investors, researchers, and founders of start-up enterprises to be “paroled” into the US if they show they have a certain amount of investment funding. DHS also issue a new regulation stating that these people are eligible to obtain green cards.

Improvements of Adjustment of Status Process

The president’s proposal will allow individuals with approved employment-based petitions, who are waiting for word that their visas can now be issued, to file an adjustment of status application as long as their category is not considered unavailable. While this change in the green card process does not give individuals lawful permanent status, it places them in the position of having filed an adjustment application.

H-4( Spouses accompanying H-1Bs)

The President’s announcement will allow certain spouses of persons in H-1B status to work in the US. Current regulations do not allow spouses to work. A finalized rule is expected in early 2015.

Intracompany Transfer Visas (L-1B)

In the  US, businesses often use the L-1 visa category to facilitate intracompany transfers. The L-1B visa is used for employees who posses specialized or advanced knowledge specific to the employer. There is indication now that the new L-1B guidance will be released soon and if such guidance reverses the trend of narrowly applying key terms that define “specialized knowledge” such guidance will be helpful to businesses and provide needed predictability for employers trying to develop and grow their US operations.

Optional Practical Training (OPT)

OPT helps foreign students who are educated in the US to remain temporarily in the US to gain experience in their field of study. The President’s reforms are expected to help employers retain these promising students by extending the length of time a STEM graduate can remain in the US in OPT

status as well as expand the number of degree programs eligible for OPT. A change in regulations is necessary to implement this reform.

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