President Obama’s 2014 Immigration Reforms

Update – November 09, 2015: Today the Fifth Circuit Court of Appeals upheld its previously issued injunction against the president’s reforms announced almost a year ago.  Having read the majority opinion, it is unfortunate to see just how political the two-judge decision is. Judge Smith states that the Immigration and Nationality Act does not allow for the “reclassification of … aliens mak[ing] them newly eligible for a host of federal and state benefits, including work authorization.”  This is not an accurate statement – plain in simple. No state or federal benefits, aside from work authorization, are included in this program.  The dissent, written by Judge King, is a much more accurate review of the law and the president’s authority. Based on what’s being reported in the news, the White House intends to appeal this decision to the US Supreme Court.

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On November 20, 2014, President Obama announced sweeping improvements to the US immigration system in response to the people’s support for reform and despite congressional inaction.  With much left to be determined, this page provides you details of the reforms known today and information on implementation timelines. Immigration law is not about completing some forms; it’s a complicated, technical area of law that changes.  Contact Swenson Law Office PC to discuss whether or not you qualify for an aspect of these reforms and how we can put you in the best position to be approved.

Adjusting removal priorities: felons, not families

Removing (deporting) someone from the US is stressful for many involved in the process.  As the immigrant, your entire future is in someone else’s hands.  If you’re lucky enough to have a licensed attorney working for you, you’re in a better position than most who endure it alone.  President Obama’s administration has deported more immigrants than just about any other administration in recent memory.  Thanks to an in-depth article in The New York Times, it was demonstrated that this administration’s enforcement priorities weren’t following what was being publicized:  only 20% of those deported had been convicted of serious crimes, drug offenses and the like. 

With his November 21, 2014, announcement, Obama has publically adjusted, for the better, his administration’s priorities for removal.  In short, he has ordered to focus on the following three areas:

  1. National security threats, convicted felons, gang members, illegal entrants at the border
  2. Significant or multiple misdemeanants, those not captured at the border, or reentrants
  3. Non-criminals who remained in the US after a deportation order dated 1/1/2014

The psychological and sociological effects on children – many of whom are US citizens – stripped of their parents has been well documented of late.  Psychologists have equated to losing a parent through deportation is tantamount to that parent dying.  Sociologically, children have few if any adults left in their lives for support and care; in fact, many of these children end up in foster homes and may even be put up for adoption. Such treatment – even indirectly as is the case for deportation – of children is antithetical to what the US represents.  The president clearly stated that people who a) entered illegally prior to January 1, 2014, b) never disobeyed a prior order of removal, and c) were never convicted of a serious offense, will not be considered a priority for removal.  This is the heart of his “felons, not families” exercise of prosecutorial discretion and will be implemented starting January 5, 2015.

Deferred Action for Parents Accountability (DAP or DAPA)

In light of the changes in removal policy outlined above, it becomes clearer why President Obama authorized the Deferred Action for Parents Accountability.  This program, in conjunction with the revised removal priorities, provides a way for parents of US citizen or Lawful Permanent Resident (LPR) children to apply for deferred action. 

The benefits of this program are:

  • You will be placed “at the bottom” of the list for deportation;
  • You will receive a work permit valid for three (3) years; and,
  • You will be eligible for a valid Social Security Number.

Next, to be eligible, individuals must meet the following criteria:

  1. As of 11/20/2014, you have a child who is a US citizen or LPR;
  2. Have resided in the US since at least 1/1/2010;
  3. Were present in the US on 11/20/2014;
  4. Are present at the time of filing your application;
  5. Have no lawful status at the time of filing;
  6. Are not a priority for removal according to the guidelines announced on 11/20/2014; and
  7. Can demonstrate that you should receive a favorable decision.

It is important to know DAPA does not provide for lawful status and receiving a grant of deferred action is highly discretionary. You can still be deported if you become a threat to national security or public safety. DAPA recipients will not be eligible for Medicaid or the Affordable Care Act. This program will be implemented in approximately six (6) months, but given the number of people DAPA is designed to help, it would be wise to get started as early as possible so that when the time comes, your application can be among the first submitted.

Because DAPA is discretionary and evaluated on a case-by-case basis, it is critical that applicants work with an experienced, licensed immigration attorney to make sure you application provides an overwhelming amount of information that demonstrates you deserve a favorable decision.  Contact us to discuss whether or not you qualify and how we can put you in the best position to be approved.

DACA modifications

The president’s announcements also includes extending the DACA validity period from two (2) years to three (3) years.  This change will be implemented immediately for those who are pending renewal and for new applicants.  Given the similarity of the initial and renewal processes, this change rewards recipients who still qualify and reduces the frequency with which they must apply. This is a smart, simple way to reallocate DHS resources.  This will be implemented immediately.

Another change eliminates the age cap. The requirements of the program as announced in June, 2012, you could not apply for DACA if you were age 31 or older, having been born before June 15, 1981. This age restriction no longer applies.  So long as your entry in the US occurred before you were 16 years old, you may now apply for DACA!

The last change modifies the date of entry.  The original program required that you demonstrate you continuously resided in the US from June 15, 2007, five (5) years prior to the program’s announcement.  Now, the date of entry is pushed back to January 1, 2010.  This change makes it possible for children brought to the US between June 15, 2007, and January 1, 2010, to apply for DACA. 

These last two changes will go in effect in as little as 90 days.  As with the original DACA program, a favorable decision is discretionary and evaluated on a case-by-case basis. It is critical that applicants work with an experienced, licensed immigration attorney to make sure you application provides an overwhelming amount of information that demonstrates you deserve a favorable decision.  Contact us to discuss whether or not you qualify and how we can put you in the best position to be approved.

Expanding Provisional Waivers

The Provisional Waiver process is a relatively new one, having only been implemented in 2013. This process allows immigrants who have a 3- or 10-year bar due to potentially accrued unlawful presence to apply for a waiver and to receive a preliminary determination of a waiver prior to leaving the US for a consular interview and avoiding a lengthy delay returning to the US. Initially, only spouses and children of US citizens could qualify because the applicant needs to demonstrate extreme hardship to a US citizen spouse or parent. Now, this opportunity will be extended to include “eligible classes of relatives for whom an immigrant visa is immediately available;” in simpler terms, this means spouses and children of LPRs will be eligible to apply for a provisional waiver. Though uncertain as this early stage of the reform, the American Immigration Lawyers Association believes this reform could include any family-based preference category beneficiary with an approved I-130 and a current priority date who can demonstrate “extreme hardship” to a citizen or LPR spouse or parent.

One of the more difficult aspects of the provisional waiver program is meeting the “extreme hardship” criterion.  There is no clearly stated definition of “extreme hardship,” which creates a game of “hide the ball.”  With a detailed definition, applicants and their lawyers will have a standard by which to evaluate likelihood of success rather than having to guess or speculate what criteria will be of value to the reviewing official.  DHS is considering making “extreme hardship” a presumption, similar to NACARA from 1997.  Additionally, other factors to be considered may include:

  • family ties to the United States and
  • family ties to the country of removal,
  • conditions in the country of removal,
  • the age of the US citizen or LPR spouse or parent,
  • the length of residence in the United States,
  • relevant medical and mental health conditions,
  • financial hardships, and
  • educational hardships.

Additional Immigration Improvements

Many additional initiatives were announced as well.  Unlike the ones discussed above, there is significantly less information about how these will be fully implemented or when they will be implemented.  However, here are the highlights given what is known today:

  • Employment-based (EB1-4) visas:  More than 24 years ago, in 1990, Congress established relatively low green card numerical limits.  President Obama, absent congressional action, ordered DHS utilize what little was allocated by Congress in a more efficient and effective manner, including issuing those that were not issued when there was less demand. This falls under the president’s directive to “modernize the immigration system.”
  • EB-2/NIW: Through regulation, the president wants to promote research and development.  This can be achieved with the National Interest Waiver (NIW) filed by a self-petitioning EB-2 visa applicant.  Currently, the NIW is both underutilized and does not provide sufficient guidance nor transparency in its requirements. By addressing those two issues, this option can provide a useful path to the US.

Review our Business & Employment page to learn more about these visas, whether these may be good options for you, and how we can help you increase your chances for a successful application process.

  • EB-5 visa: DHS was directed to expand immigration options for foreign investors/entrepreneurs who meet the requisite criteria of job creation, monetary investment with the goal of growing our economy. The criteria will include income thresholds so that these individuals are not eligible for certain public benefits, like welfare or tax credits under the Affordable Care Act.

For more details about the EB-5 Immigrant Investor Visa program, please read more about this unique, highly technical opportunity and how we can work with you and advocate for you in this process.

  • Optional Practical Training (OPT): The president wants to expand the number of programs that would qualify for OPT.  He ordered the amount of time one has for OPT in STEM-related fields expanded to 29 months.
  • L-1B visa: Unfortunately the criteria used to evaluate these petitions has not clearly defined which has led to inconsistent decisions, especially relating to “specialized knowledge” criterion.  President Obama wants to clarify that phrase in an effort to standardize the criterion
  • H-1B visa: In an effort to enhance portability under AC21, clarification of the “same or a similar” occupational classification as one’s old job is ordered.  Additionally, the president ordered the removal of unnecessary restrictions to natural career progression (i.e. promotion), in an effort to increase workers’ flexibility and stability.
  • H-4 visa: This visa is for spouses and children of H-1B visa holders has not had work authorization.  Now, work authorization will be extended to H-4s who have been approved to receive lawful permanent resident status based on the H-1B’s employer’s sponsorship.  The final regulations for this piece are anticipated to be announced as early as January, 2015.
  • PERM program:  DOL has been directed to review the PERM program and its regulations in an effort to modernize the system and to make it more responsive to US’s changing workforce, especially the labor market test criterion.
  • Citizenship: There are more than 8 million lawful permanent residents (LPRs) in the US who have not pursued citizenship.  President Obama has ordered USCIS to make the process more accessible to LPRs by taking steps such as accepting credit cards to pay for filing fees, developing a partial fee waiver program for those who demonstrate need, and launching an educational campaign about the benefits of citizenship and encouraging the pursuit of citizenship.

If you are seeking an experienced citizenship and immigration attorney in Denver, CO to discuss whether or not you qualify for an aspect of these reforms and how we can put you in the best position to be approved, call Christine Swenson at 720.414.2027.

If you are an LPR and want to know learn more about what the citizenship process involves, including whether or not you qualify, contact us to discuss it and to get your application started.