[This update contains many additional details reflected in the documents released late last night regarding the executive action].

By Greg Siskind (gsiskind@visalaw.com)

Shareholder at Siskind Susser, PC – Immigration Lawyers (www.visalaw.com)

Update: Reporters – Shoot me an email at gsiskind@visalaw.com if you want to speak and we can connect by cell phone after that. Greg

This document reflects additional information included in eighteen documents released yesterday by the White House, the Department of Homeland Security and the Department of Labor as well as notes from two briefings the White House gave yesterday before the President’s speech.

Incidentally, the program will go under the name “Immigration Accountability Executive Action.” The White House is using the hashtag #immigrationaction to refer to the contents of the President’s announcement.
Deferred Action Expansion

This is the program that allows individuals who fit in to a specific category to be deferred from deportation and allowed to work and travel in the US.

  1. DACA expansion

Upper age cap will be eliminated and people of any age can apply if they meet the other requirements. The current DACA rules require someone be under the age of 31 on June 5, 2012.

Still must have entered the US before the age of 16 regardless of how old they were in June 2012 or are today.

DACA being expanded to three year increments. This change will apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Work cards will be valid for three years at a time and USCIS will look at means to extend the two-year renewals to three years. USCIS is also considering extending previously issued two-year work authorization renewals for the new three year period but no decision has yet been made.

Physical presence date advanced to 1/1/2010. Applicants can qualify if they were in the US by that date as opposed to June 15, 2007 under the current DACA rules.

USCIS is advising that they expect these changes to take effect approximately 90 days from November 20, 2014.

 

  1. Parents of US citizens and lawful permanent residents (as of November 20, 2014) will now be eligible for deferred action is they have been present since 1/1/2010 and have five years of total presence in the US. The program is called Deferred Action for Parental Accountability.

An applicant must have been present in the US on November 20, 2014 and at the time of making the request for deferred action.

Applicants may not have a lawful status on November 20, 2014.

Applicants will be subject to background checks and must not be in an enforcement priority category (see below)

Background checks will be required. The White House had mentioned a back taxes requirement during its 11/20/2014 briefing, but no mention is made regarding this requirement in any of the issued documents.

Like DACA, deferred action will be granted for a period of three years.

The fees will remain at $465. No fee waivers and very limited fee exemptions.

Applications to be accepted within 180 days after November 20, 2014. If someone is picked up by ICE, CBP or USCIS, they are to be identified as potentially eligible for DAPA and officers are to see administrative closure or termination of the case.

DHS will review cases currently in removal proceedings to see who might be eligible for relief and those cases will be closed.

Estimated population benefit will be 4.4 million.

 

Enforcement Priorities

The Morton memo and several other policy documents on enforcement priorities are being replaced with an interagency memorandum that sets out new enforcement priorities. The victims of crime memorandum is not being rescinded.

Three groups

  1. Priority 1 (threats to national security, border security and public safety)

– Aliens engaged in terrorism or espionage or who pose a danger to national security

–  Aliens apprehended at the border or ports of entry while attempting to unlawfully enter the US

– Aliens convicted of offenses relating to participation in a criminal street gang or aliens not younger than 16 who intentionally participated in a gang to further the illegal activity of the gang

– Aliens convicted of an offense classified as a felony in the convicting jurisdiction other than a state or local offense for which an essential element was the alien’s immigration status

– Aliens convicted of an “aggravated felony.

  1. Priority 2 (misdemeanants and new immigration violators)

– Aliens convicted of three or more misdemeanor offenses other than minor traffic offenses or state/local offenses where immigration status is an essential element

– Aliens convicted of a “significant misdemeanor” which means an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug distribution or trafficking, or driving under the influence. Also, offenses which resulted in a sentence to time in custody of 90 days or more (not including suspended sentences).

Note that these are very similar to the criminal bars in the DACA program.

  1. Priority 3 (other immigration violations)

– Aliens who have been issued a final order of removal on or after January 1, 2014. Individuals in priority 3 should generally be removed unless they have an asylum claim or another form of relief.

 

Detention resources should be used to support the enforcement priorities. Field office directors should not expend detention resources on aliens suffering from serious physical or mental illness, who are disabled, elderly, pregnant or nursing, who are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. Otherwise, special permission needs to be obtained from the ICE Field Office Director who should contact their local Office of Chief Counsel for guidance.

Individuals who don’t fit in to these groups, but also don’t qualify for IAEA will be eligible for prosecutorial discretion.

Like the Morton memo, various extenuating circumstances can be used in determining prosecutorial discretion including

– The offense of conviction

– The amount of time since the conviction

– The length of time in the US

– Military service

– Family or community ties in the US

– Status as a victim, witness or plaintiff in civil or criminal proceedings; or

– Compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

These changes take effect on January 5, 2015.

Secure Communities being replaced by Priority Enforcement Program. The new program will continue to rely on fingerprint-based biometric data submitted during bookings by state or local law enforcement for crimes that fit the new enforcement priorities memo also released yesterday (see above). Because of Fourth Amendment concerns, ICE will replace most requests for detention with requests for notification. In the instances where detention is requested, ICE will show there is a final order of removal or there is other sufficient probable cause to find the person is a removable alien.

 

Border security changes

The Southern Border and Approaches Campaign Plan is being revised in order to implement a “command and control” campaign which coordinates and better uses resources at the border.

Three joint taskforces are being commissioned. All three will incorporate elements of the US Coast Guard, CBP, ICE and USCIS. Joint Task Force East will be responsible for the Southern maritime border and approaches. Joint Task Force West will cover the Southern land border and the West Coast. Joint Task Force Investigation will focus on investigation in support of the geographic task forces. Within 90 days, personal and stand up headquarters capabilities will be realigned.

 

Waivers

Secretary Johnson is directing USCIS to issue new regulations and policies regarding I-601A waivers. In January 2013, DHS published a regulation setting up a process to allow some people to file I-601A waivers of the three and ten year overstay/unlawful status bars before leaving the US and potentially facing a 3 or 10 year bar on returning to the US. The current rule only applies to spouses and children of US citizens. The rule will now be extended to cover all statutorily eligible classes of relatives for whom an immigrant visa is immediately available (including spouses and children of lawful permanent residents and the adult child children of US citizens and lawful permanent residents). Provisional waiver 601(a) waivers will be expanded to lawful permanent resident spouses (limited to unlawful presence).

USCIS is advising that these changes will not take effect until new guidelines and regulations are issued and has not provided a timeline.

Secretary Johnson is also requesting that USCIS should clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard is met in order to provide broader use of this legally permitted waiver program. Factors to be considered include, but are not limited to

– Family ties to the US and the country of removal

– Conditions in the country of removal

– The age of the US citizens or permanent resident spouse or parent

– The length of residence in the US

– Relevant medical and mental health conditions

– Financial hardship and

– Educational hardship

USCIS is also being directed to consider criteria by which a presumption of extreme hardship may be determined to exist (similar to the NACARA program.

 

Legal Immigration Reforms

  1. Pre-registration will be available to allow people adjustment of status benefits when an I-140 is approved but no priority date is available. (estimated to benefit 410,000). This will be done by regulation. NOTE that this was mentioned in a briefing to advocates on Thursday, November 20th at the White House just prior to the President’s speech but is not explicitly mentioned in the written materials. In the White House Fact Sheet, the following is stated “Under the current system, employees with approved LPR applications often wait many years for their visa to become available. DHS will make regulatory changes to allow these workers to move or change jobs more easily.”
  2. Secretary Johnson in an 11/20 memo to USCIS Director Leon Rodriguez, directs USCIS to take the following actions:
  3. USCIS should continue and enhance work with the Department of State to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for the visas.
  4. USCIS is directed to work with the Department of State to improve the system for determining when immigrant visas are available to applicants during the fiscal year. The DOS Visa Bulletin is being modified to simplify this.
  5. USCIS should look at other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS will consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases when an applicant seeks to change employers. Secretary Johnson has also asked USCIS to issue a policy memo that provides additional guidance in portability cases where workers are moving to employers they claim are in the “same or similar” occupations. The intent is to remove unnecessary restrictions to natural career progression and give workers increased flexibility and stability.

These changes are to be implemented by guidance and regulation and no timeframe is being mentioned yet.

  1. Visa modernization – In the White House briefing of 11/20/2014, mention was made of a Presidential Memorandum directing agencies to look at modernizing the visa system and consider issues such as derivatives being counted and whether past unused visa numbers can be recaptured.

These changes are to be implemented by guidance and regulation and no timeframe is being mentioned yet.

  1. Using advance parole will not trigger inadmissibility. Secretary Johnson has asked DHS’ General Counsel to issue written legal guidance on the meaning of the Arrabally decision which held that travel on an advance parole was not a “departure” within the meaning of the INA and did not trigger the ground of inadmissibility that bars admission after the accrual of unlawful presence.
  2. The National Interest Waiver category is “underutilized” and Secretary Johnson has ordered USCIS to issue guidance and regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the US economy. This change is said to be primarily targeted at making it easier for entrepreneurs to qualify.
  3. Parole in place being expanded to
  4. certain entrepreneurs – Secretary Johnson has ordered that pursuant to the “significant public benefit” parole authority under section 212(_) of the INA, USCIS will grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver but who have been awarded substantial US investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research. There will be a regulation and it will include income and resource thresholds to ensure people will not access public benefits. Comment: This last part is somewhat insulting to entrepreneurs who are taking major risks to create jobs in the US. Is this really necessary?

These changes are to be implemented by guidance and regulation and no timeframe is being mentioned yet.

  1. enlistees in the military – Secretary Johnson issued a memorandum to USCIS directing the agency to issue new policies on the use of parole-in-place or deferred action for certain spouses, children and parents of individuals seeking to enlist in the US Armed Forces. This is an expansion of the current parole in place policy and will encompass family members of US citizens and lawful permanent residents seeking to enlist in the US Armed Forces. The purpose is to support the military in its recruitment efforts. USCIS is also being directed to consider deferred action to those undocumented family members of US service members who would otherwise be eligible for parole-in-place but were inspected and lawfully admitted to the US.
  2. Optional Practical Training – Secretary Johnson has directed ICE and USCIS to develop regulations to expand the degree programs eligible for OPT under the rule that currently allows certain STEM professionals to use OPT for up to 29 months. The time period of 29 months will also be extended, but a specific number of additional months was not mentioned by Secretary Johnson in his memo to USCIS Director Rodriguez. ICE and USCIS are being directed to require “stronger ties” to a degree-granting institution to better ensure the training is furthering the student’s full course of study. ICE and USCIS are also directed to take steps to ensure that OPT is consistent with US labor market protections to safeguard the interests of US workers in related fields. No details on these last provisions are provided though it sounds pretty open-ended and could make the OPT rules much more restrictive. There is also talk about counting undergraduate STEM programs for purposes of STEM OPT extensions even if the graduate degree is not in a STEM field.
  3. PERM – The Department of Labor will be undertaking a review of the 10 year old PERM program to modernize it and make it more responsive to changes in the national workforce. It will be seeking input on the following
  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors

Other changes may also be made beyond these.

  1. H-4 work authorization – this rule will be finalized. According to a White House briefing from 11/20, the rule will be released by in December or January.
  2. The long awaited L-1B memo on “specialized knowledge” will be released. According to Secretary Johnson, the current program provides “vague guidance and inconsistent interpretation of the term “specialized knowledge.” The new memo is intended to provide clear, consolidated guidance on the meaning of the term in order to improve consistence in adjudications and enhance companies’ confidence in the program.

There will be a presidential memo and a task force created. More changes may be coming when actual memoranda and regulations are issued.

 

Citizenship

8 million people are eligible to naturalize and have not. Secretary Johnson has directed USCIS to accept credit cards as a payment option for the naturalization fee. The pay.gov web site will be used to accept the payments and this will take effect by the end of 2015 (comment: welcome to the 21st century! I’m guessing ApplePay is not in the offing).

Fee waivers are currently available for people whose income is no more than 150% of the federal poverty level. A 50% fee reduction will be available if the income is between 150% and 200% of the federal poverty level will be studied by USCIS.

Secretary Johnson is directing USCIS to expand citizenship public awareness by launching a comprehensive media campaign targeting major media markets in California, New York, Texas, Florida, New Jersey, Illinois, Massachusetts, Virginia, Washington and Arizona which are collectively home to 75% of the country’s green card holder population.

 

Miscellaneous

  1. Immigration Court reforms –The White House fact sheet notes that DOJ is going to announce a package of immigration court reforms that will address the backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet the new DHS-wide enforcement priorities and close cases of individuals who are low priorities. DOJ is also being directed to pursue regulations that adopt best practices for court systems to use limited court hearing time as efficiently as possible. Note: In the White House briefing of 11/20/2014 it was noted that this package would address the qualification of accredited representatives and ineffective assistance of counsel issues.
  2. Worker Exploitation -The Department of Labor, DHS, DOJ, EEOC and the NLRB will establish a working group to ensure workers are protected who are asserting workplace claims and where workplace investigations are ongoing.
  3. ICE Personnel Reforms -ICE’s shift to criminal aliens has made their jobs more difficult without the appropriate personnel structure and components. This has hurt morale and presents other management challenges.

Accordingly, a recalibration of ICE’s workforce and personnel pay structure is being implemented. This should be completed by February 2015.

  1. Integration – Another Presidential Memorandum will set up a Task Force on New Americans.
  2. U and T Visas. The US Department of Labor is going to expand and strengthen immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations. Three qualifying crimes are going to be added to U visa certifications (extortion, forced labor and fraud in foreign labor contracting) and exercise similar authority by completing T visa certifications for victims of human trafficking. Basically, the DOL Wage and Hour Division provides these certifications as a law enforcement agency to help document the U or T visa application adjudicated by USCIS.

 

Timing – some items will be immediate and others will be phased in.

 

Greg Siskind