Summary of Obama’s Executive Action

On November 20, 2014 the President issued his long awaited announcement of steps he would take using his executive authority to provide administrative relief to certain classes on foreign nationals currently in the US without legal status. He also announced plans to modify the employment based immigration system to better serve the needs of US employers, enhancing our ability to attract and retain needed highly skilled workers and entrepreneurs. Some of the key steps that will be taken include:

1. Creating a new Deferred Action for Parents (DAPA) of US citizen or Lawful Permanent Resident children who:

(1) Entered the US before January 1, 2010 and have resided here continuously since that time

(2) Have no legal status at the time of application

(3) Have a US citizen or Lawful Permanent Resident child as of November 20, 2014

(4) Have no criminal record and present no serious threat to the US, and

(5) Are willing to pay a fee and undergo background checks.

These applicants will be granted an Employment Authorization Document valid for three years.

2. Expanding the Deferred Action for Childhood Arrivals (DACA) program to include children who entered the US under the age of 16 prior to January 1, 2010 (the previous date was June 15, 2007); remove the age cap for DACA applicants (the original program was limited to applicants born after June 15, 1981); and grant temporary employment authorization for a three year period (increased from the current two years). Unfortunately, parents of DACA-eligible children are NOT included in the expanded program.

3. Expanding the Provisional Waiver Program* to include the spouses and children of Lawful Permanent Residents as well as the adult children of US citizens and Lawful Permanent Residents.

*This program allows applicants who have accrued unlawful presence in the US and would therefore invoke the 3 or 10 year bar to reentry to the US if they travel abroad to obtain an immigrant visa, to seek a waiver of the bar before leaving the US, thereby avoiding a lengthy separation from family members.

4. Modernizing the employment-based immigration system to ensure that all visa numbers authorized under the quota system are used. This could include allowing applicants with approved visa petitions to file an Adjustment of Status application before their Priority Date is reached, thereby gaining the benefits of an Employment Authorization Document and Advance Parole authorization.

5. Expanding Optional Practical Training for F-1 students with STEM degrees, and at the same time, expanding the list of degree programs that qualify for STEM extensions.

6. Clarify the criteria for approval of a National Interest Waiver petition with the goal of promoting its greater use.

7. Grant parole status pursuant to the “significant public interest” provision to inventors, researchers, and founders of start-up companies with substantial US funding to facilitate job creation in the US.

8. Provide clearer guidance on the criteria for L-1B specialized knowledge visas to enhance the business community’s confidence in their ability to depend on the classification to bring needed workers to the US.

9. Refining the “same or similar” portability provisions for long pending Adjustment of Status applications to allow workers greater flexibility to seek new opportunities and accept promotions.

10. Allow certain H-4 dependents to apply for an Employment Authorization Document (this was published as a proposed rule in the Federal Register months ago, and could be implemented quickly as a final rule).

With few exceptions, these changes will require the publication of rules and regulations in the Federal Register before implementation. In the meantime, potential applicants for the newly expanded deferred action programs should begin to collect documents proving their presence in the US since prior to the cut-off date, and of course, refrain from travelling outside the US.

We are prepared to assist applicants with the expanded deferred action programs. We represented hundreds of applicants during the 1986 amnesty program and are very familiar with the issues likely to arise.

Please contact any of our attorneys if you have any questions.