The following are the major items of President Obama’s Executive Action on #Immigration
Many of the existing ICE memos on enforcement priorities and prosecutorial discretion will be replaced by a new memo with three priorities: (1) Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and persons apprehended on the border; (2) Persons convicted of serious or multiple misdemeanors and very recent border crossers (those who entered after January 1, 2014); and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. The memo will contain strong language on the use of prosecutorial discretion.
Deferred Action Benefiting Approximately 4.4 Million Undocumented Individuals
Two deferred action initiatives will be rolled out that are estimated to benefit 4.4 million undocumented individuals: (1) Deferred Action for Parents (DAP): Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010, and who pass background checks and pay back taxes; and (2) DACA Expansion: The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010. Both of these initiatives will provide deferred action for three years. The expanded DACA should be up and running in 90 days and deferred action for parents in 180 days. Note: no initiative specifically for parents of DACA recipients was included.
I-601A Waiver Expansion
The I-601A provisional waiver will be expanded to include spouses and children of lawful permanent residents. An expansion and clarification of the definition of “extreme hardship” is also expected.
Timing of Filing for Adjustment of Status
The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.
Business Immigration Changes
A number of business immigration improvements are to be announced. For example, certain investors will be eligible for parole into the U.S., or for parole-in-place, and national interest waivers could be available for entrepreneurs, researchers, inventors, and founders. Also, the term “same or similar” for AC-21 purposes will be clarified, L-1B guidance will be released, the H-4 EAD regulation will be finalized, and the length of time permitted on OPT for STEM graduates will be expanded. Additionally, the rulemaking process will be undertaken to modernize the PERM labor certification program and may include a harmless error provision.
There will be a Presidential Memorandum directing the various immigration-related agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law. Issues such as whether derivatives should be counted towards the visa quota and whether past unused visa numbers can be recaptured are expected to be included in this effort.
State and Local
Secure Communities will be discontinued and replaced with a new initiative, the Priority Enforcement Program (PEP). Details are still forthcoming on what PEP will entail, but in certain circumstances, detainers may be replaced by requests for notification to ICE when a law enforcement entity is about to release an individual.
Parole-in-place will be expanded to include families of individuals trying to enlist in the armed forces, as some branches of the military ban applicants who have undocumented family members.
The U.S. Citizenship and Immigration Services (USCIS) announced on November 20, 2014 that it will begin granting Temporary Protected Status (TPS) to certain nationals of Liberia, Guinea, and Sierra Leone due to the ongoing outbreak of the Ebola virus in West Africa.
Temporary Protected Status will allow you to remain in the United States lawfully for 18 months and receive an Employment Authorization Document to lawfully work in the United States. To be eligible you must:
- -File an application with USCIS between November 21, 2014 and May 20, 2015 using Forms I-821 and I-765;
- -Be a national of Liberia, Guinea, or Sierra Leone, or be a person without nationality who last habitually resided in one of these countries;
- – Have been continuously residing in the United States since November 20, 2014
- -Have been continuously physically present in the United States since November 21, 2014, except for brief, casual, and innocent departures;
- -Never have been convicted of any felony or two or more misdemeanors committed in the United States;
- -Not be inadmissible under INA 212(a) including certain criminal and security-related grounds; and
- -Not be subject to any mandatory bars to asylum, such as participating in the persecution of any person or engaging in or inciting terrorist activity.
USCIS will begin accepting TPS applications from nationals of Liberia, Guinea, and Sierra Leone on November 21, 2014. If eligible, you should submit Forms I-821 and I-765 with all required documentation including:
- Evidence of your identity and nationality. This can include your Biographic Passport Page or Birth Certificate.
- Evidence of your date of entry to the United States. This can include your Passport Pages with entry stamp or I-94 Card.
- Evidence of you continuous presence. This can include your employment records; rent receipts, utility bills, and letters or receipts from companies; school records of you or your children, hospital or medical records of you or your children; and attestations from church, union other organization officials).
- Required filing fee in check or money order made payable to “U.S. Department of Homeland Security.” The filing fee depends on the age of the applicant, but for most applicants it is $515.
USCIS is only allowing a 180-day window for nationals of Liberia, Guinea, and Sierra Leone to apply for TPS. The last day to apply is May 20, 2015!
As of 11/12/14, the U.S. State Department National Visa Center will cease collecting original civil documents in support of IV applications at non-electronic processing posts. Designated electronic posts will continue to accept documents via e-mail. Original documents will need to be brought to interviews.
Effective November 12, 2014, the United States and the People’s Republic of China will reciprocally increase the validity of short-term business and tourist visas and student and exchange visas issued to each other’s citizens. Chinese applicants who qualify for a B-category nonimmigrant visa (NIV) may now be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J-category visas are now eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short term business and tourist visas
should also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residency permits valid up to five years, depending on the length of their educational program.
USCIS issued a new policy (PA-2014-009) clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers. USCIS and the Department of State (DOS), who exercise authority over these issues, collaborated in the development of this policy. USCIS and DOS concluded that the term “mother” and “parent” under the INA includes any mother who:
- Gave birth to the child, and
- Was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.
Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an egg donor) will:
- Be able to petition for her child based on their relationship
- Be eligible to have her child petition for her based on their relationship
- Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.
USCIS Service Center Operations (SCOPS) has advised that the processing times for renewal I-821D applications is 90 days at all four service centers. USCIS also noted that it encourages individuals to submit DACA renewal applications between 150 and 120 days in advance of the expiration date of the current EAD, and that if the renewal application is filed at least 120 days in advance and there is a delay, the service center may provide employment authorization for a short period of time until the renewal is adjudicated.
National Immigrant Justice Center reported that at the behest of the Solicitor General, the U.S. Supreme Court today granted certiorari in Din v. Kerry to decide whether immigrant families separated by U.S. government officials have any right to know the basis for their forced separation.The government claims “complete discretion” over whether to allow “alien spouses (and other family members) of U.S. citizens … admission to the United States,” and sought Supreme Court review to avoid needing even to give a basic explanation for why it is excluding the spouse of a U.S. citizen from entry to the United States.“Saying that Mrs. Din can move to another country to be with her husband harkens back to the shameful time in U.S. history when the government said that even if a state bars interracial marriage, a mixed-race couple can go get married in another state,” said Chuck Roth, director of litigation at Heartland Alliance’s National Immigrant Justice Center (NIJC). “If the government is going to separate a U.S. citizen from her husband, it should at least have to give a reason.”According to the Department of Homeland Security (DHS) statistical yearbook, more than 200,000 noncitizens immigrate every year through a marriage to a U.S. citizen. The U.S. Census Bureau reports that over 1.5 million couples residing in the United States are native-born U.S. citizens married to noncitizens; another 4.4 million couples are naturalized citizens and noncitizens. U.S. citizens may file visa petitions for their spouses. However, the approval of a spouse’s visa petition does not automatically confer the right to enter the United States. A visa must still be issued.NIJC client Amber Ramirez of Kankakee, Illinois, and her children have been separated from her spouse Victor since October 2011, when he traveled to Juarez, Mexico, for an interview at the U.S. consulate to obtain lawful entry to the United States. A consular officer denied the visa, finding “reason to believe” that he might engage in illegal activity after entering the United States. No further explanation was given; but the consulate seemed focused on his tattoos. Victor has never been in a gang, and is not listed in Illinois’ gang database. Amber worked with the local police to explain that Victor’s tattoos did not match any known gang tattoos. The couple explained each of his tattoos, including the tattoo of the name of their daughter. The consulate refused to reconsider or to explain its reasoning, even though over 40% of American households include a member with tattoos. The family remains separated based solely on the word of an anonymous bureaucrat. This would be unreviewable under the government’s argument in Din.“We are dismayed that the Obama administration is so determined to shield itself from accountability for decision making that separates U.S. citizens from their families, that it is taking this case to our nation’s highest court,” said NIJC Director Mary Meg McCarthy. “At a time when so many families are suffering under our broken immigration system, this is not where the president’s attention should be.”
USCIS announced it will automatically extend Employment Authorization Documents (EADs) for Liberian nationals covered under Deferred Enforced Departure (DED). Current DED Liberia EADs that have an expiration date of Sept. 30, 2014, will now be valid through March 30, 2015.
The Board of Immigration Appeals held that an alien admitted to the U.S. at a port of entry (POE) as a conditional permanent resident pursuant to INA §216(a) is an alien “lawfully admitted for permanent residence” who is barred from an INA §212(h) waiver if he was subsequently convicted of an aggravated felony.
The American Immigration Council reported that U.S. law professors sent a letter to the White House stating that President Obama has wide legal authority to make needed changes to immigration enforcement policy. The president is considering how to use his authority to mitigate the damage caused by our dysfunctional immigration system and protect certain individuals from deportation.
The letter was written by Stephen H. Legomsky, John S. Lehmann University Professor at Washington University School of Law and former U.S. Citizenship and Immigration Services (USCIS) Chief Counsel; Hiroshi Motomura, Susan Westerberg Prager Professor at UCLA School of Law; and Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar at Penn State Law. It was signed by professors from 32 states, the District of Columbia, and Puerto Rico.
“As part of the administration’s legal team that ironed out the details of DACA, I can personally attest that we took pains to make sure the program meticulously satisfied every conceivable legal requirement,” said Legomsky. “In this letter, 136 law professors who specialize in immigration reach the same conclusion and explain why similar programs would be equally lawful.” (DACA is the acronym for Deferred Action for Childhood Arrivals, the program the president initiated in June 2012.)
In their letter, the law professors point out that “The administration has the legal authority to use prosecutorial discretion as a tool for managing resources and protecting individuals residing in and contributing to the United States in meaningful ways.” The letter goes on to explain that presidents from both parties have used prosecutorial discretion to prevent specific, and often large, groups of immigrants from being deported.
“Our letter confirms that the administration has specific legal authority to use prosecutorial discretion as a tool for protecting an individual or group from deportation,” said Wadhia. “This legal authority served as foundation for prosecutorial discretion policy across several administrations. Historically, this policy has been premised on the twin policy goals of managing limited resources and shielding people with compelling situations from removal.”
This is the second major letter about prosecutorial discretion that law professors have sent to President Obama. The first letter, sent in 2012, outlined the legal argument for expanded administrative relief, which later became the blueprint for the president’s DACA program. That program allows qualifying noncitizens who came to the United States as children to apply for relief from deportation and work authorization.
“This letter reflects a clear, broad, and informed consensus on two key points,” said Motomura. “First, the president has the legal authority, exercising his discretion as the nation’s top immigration prosecutor, to establish enforcement priorities. Second, the president’s lawful discretion includes the authority to set up an orderly system, modeled on DACA, for granting temporary relief from deportation.”
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