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By Jon Eric Garde, Esq.

Only Congress can create immigration law, but the President can issue policy orders to guide how existing law is enforced. This is exactly what President Obama did by issuing an Order on November 20, 2014 to amend the manner in which existing immigration law will be enforced this coming 2015. While continuing to intensify border enforcement and prioritize the deportation of felons and not families, President Obama has ordered that an estimated 5 million undocumented immigrants will be granted employment authorization for a three year period through “deferred action.” Moreover, many obstacles to lawful immigration have been created by 1996 amendments to the Immigration and Nationality Act, which have been eliminated by the President’s order by an expanded application of his parole power. Both of these changes will be discussed immediately below.

Deferred action has been in existence since the 1960s. It is best understood as the selected non-enforcement of arrest and deportation provisions guided by humanitarian reasons or when in the public interest. Deferred action must be granted on a case by case basis, but, it may also target a specific identifiable group for a case by case individualized determination to grant or deny this benefit. Persons granted deferred action can also apply for an employment authorization document. Recently, Deferred Action for Childhood Arrivals, DACA, was implemented by President Obama for unlawfully present persons who (1) arrived in the United States on or before June 15, 2007, (2) who have been physically present since that date, (3) who arrived prior to reaching the age of 16 and (4) who were under 31 years of age at time of their initial application. DACA was made available to eligible persons whether or not they were subject to removal proceedings or a final removal order. The $465 filing fee cannot be waived, and applicants must have either graduated high school, have achieved an equivalent degree, or be in the process of seeking a high school diploma or the equivalent degree when applying to extend this benefit. DACA was initially granted for a two year period, and has recently been extended once. The President’s recent Order extends the arrival date for DACA to January 1, 2010, removes age restrictions and extends each grant to a three year period. Moreover, a new deferred action program has been created, entitled Deferred Action for Parental Accountability, DAPA, for individuals who are parents to US citizens or lawful permanent residents, who arrived in the United States prior to January 1, 2010, and who pass background checks demonstrating that they are not an enforcement priority.

Then, there is the expansion of the parole power through the President’s Order, which is best understood by explaining the differences between admission and parole. Admission to the United States must be with legal status, either as a permanent resident, (an immigrant), or temporarily as a non-immigrant. There are many categories of immigration and non-immigrant status. Any entry into the United States that is not with immigrant or non-immigrant status is through “parole”, which is done either for humanitarian reasons or in the public interest. While certain groups of people can be considered for parole, as a matter of federal policy, parole is granted on a case by case basis. Parole is granted one of three ways: (1) It can be granted from outside the United States. (2) It is also granted through “parole in place”, without departure from the United States, as has been recently been made available to be granted to undocumented persons whose parent or children are actively serving in the military. (3) It can also be granted as “advance parole” before departure so as to allow parole into the United States upon return.

Advance parole is now being applied to open up immigration opportunities for millions of people. Under the direction from the Secretary of Homeland Security, DHS officials will be instructed to follow a 2012 immigration decision (Matter of Arrabally), finding that a lawfully present individual who travels abroad after a grant of advance parole does not trigger the three- or 10-year bars that ordinarily apply when a person departs the United States after residing here unlawfully for more than six months. Thus, by broadly applying this decision, individuals who would be eligible for LPR status but for the fact that their last entry into the United States was unlawful may be able to apply for permanent resident status upon their parole back into the United States. The new DHS instruction will ensure consistent application across the department.

The President’s recent Order also acknowledged the contributions of high skilled immigrant workers, exceptional ability workers, and entrepreneurial immigrants to our nation’s economy, explaining a variety of administrative reforms would be implemented by regulation no later than 180 days following the President’s policy Order, issued on November 20, 2014. The President thereby acknowledges our nation’s need to retain the most talented students educated within American universities and thereby maintain the competitive advantage of our economy. Likewise, the President has ordered both deferred action programs be implemented by regulation no later than 180 days following November 20, 2014, meaning on or before May 19, 2015.

The President’s executive order has been further explained by numerous memoranda issued by the Secretary of Homeland Security, Jeh Johnson, among others. Having reviewed these memoranda, I provide the following outline to itemize and explain the President’s directives. This outline may not address every question the reader may have, as certain terms are yet to be explained by the Obama administration. Additional and ongoing research will no doubt become necessary. Please feel free to rely on the attached outline to understand the many criteria used by the Obama administration in processing these newly expended immigration benefits provided by the President’s November 20, Executive Action.

  1. Individuals will be covered under a new program, “deferred action for parental accountability” (DAPA), with the following conditions:
    1. They must register with the US Citizen and Immigration Services and pay taxes, and
    2. They must be parents of US citizens or lawful permanent residents born prior to November 20, 2014
    3. They must have lived in the United States on or before January 10, 2014,
    4. They must have been physically present on November 20, 2014 and at the time of application for deferred action,
    5. They must lack lawful status as of November 20, 2014
    6. They must not be an enforcement priorities, and
    7. They must present no other negative factors which would make a grant of deferred action inappropriate.
  2. Deferred Action for Childhood Arrivals, (DACA), originally implemented on June 15, 2012, will be expanded to include adult arrivals who entered the United States on or before January 1, 2010.
    1. DACA age restrictions will be eliminated,
    2. DACA benefits will be granted for three instead of two years, and
    3. Educational and public safety criteria will remain unchanged, meaning that applicants will need to have graduated high school or be enrolled in a high school or GED program at time of application
    4. New criteria for existing grantees should go into effect within 90 days of the President’s November 20, 2014 announcement.
  3. Expanded Advance Parole- Parole has been a procedural admission by federal government authorizes of a non-citizen, motivated by humanitarian or public interest purposes, other than in a non-immigrant or immigrant category defined by Congress.
  4. Enforcement priorities, which bar a grant of DAPA relief, include persons targeted as national security risks, as follows:
    1. Priority 1
      1. Persons suspected of terrorism or espionage
      2. Violent criminals and convicted felons
      3. Persons convicted of aggravated felonies, as defined under the Immigration and Nationality Act
      4. Gang members
      5. Recent Border Crossers
    2. Priority 2
      1. Persons convicted of serious or multiple misdemeanor, which include:
        1. Three or more misdemeanors that are not minor traffic offenses or state or local offenses that criminalize unlawful immigration status,
        2. “Significant misdemeanors”, which include domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution, or trafficking, or driving under the influence of intoxicants. Domestic violence convictions are mitigated by a determination that the defendant was also a domestic violence victim.
        3. A misdemeanor for which the individual was sentenced to time in custody of 90 days or more, (not to include a suspended sentence).
      2. Entrants after January 1, 2014
      3. Persons who have significantly abused visa or visa waiver programs. Guidance is yet to be provided for this provision, however, a mere visa admission overstay cannot foreseeably be included.
    3. Priority 3
      1. Persons who failed to leave the United States after being issued a removal order after January 1, 2014
      2. Persons who returned after removal from the United States
    4. Exceptions available to persons subject to priority enforcement include:
      1. Persons who qualify for asylum or other forms of humanitarian relief
      2. Persons whom the ICE Field Office Director and the CBP Sector chief or Director of Field Operations, in their judgment, are subject to compelling and exception factors that clearly indicate that the alien is not a threat to national security, border security or public safety so as to not be an enforcement priority.
      3. In making such judgments, DHS personnel should consider factors such as:
        1. extenuating circumstances involving the offense of conviction;
        2. extended length of time since the offense of conviction;
        3. length of time in the United States;
        4. military service;
        5. family or community ties in the United States;
        6. status as a victim, witness or plaintiff in civil or criminal proceedings
        7. compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.
      4. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.
    5. Persons convicted under state law for their unlawful immigration status will not be targeted, even if such a conviction is a felony. However, persons with a federal felony conviction involving an immigration violation, (see e.g., re-entry after deportation), may be considered an enforcement priority.
  5. Expanded Parole Power-
    1. DACA and DAPA applicants will be granted advance parole, liberally, to allow return to immigrate, through a qualifying relationship, if eligible to do so.
    2. Advance parole will also be made available for qualifying entrepreneurs and highly skilled workers
    3. Parole in place will continue to be applied to immediate family members to US citizens who are actively serving in the military.
    4. Parole in Place as well as deferred action will also be expanded to enable persons who have family members who are US citizens or lawful permanent residents to immigrate through military service.
  6. Relief in the form of DACA and DAPA will be available to persons in removal proceedings:
    1. Persons, who are prima facie eligible for either DACA or DAPA benefits, will have their removal cases closed.
    2. Such persons will be allowed to live and work in the United States, during three year time increments.
    3. Special provisions will be implemented in immigration court to ensure that representatives are accredited and competent.
  7. Special benefits will be extended to pending immigration applicants for high skill employment classifications, as follows:
    1. Portable work authorization will be granted to high skilled workers and their spouses, awaiting green cards, allowing them to work not only for their sponsoring employer but for any other employer offering similar employment to that offered by their initial petitioning employer.
    2. The spouses of H-1B high skilled non-immigrants will be granted unrestricted employment authorization, where their H-1B spouse has been granted an employment based immigrant petition.
    3. Enhanced immigration options will be made available to foreign investors and entrepreneurs, allowing streamlined procedures for such immigrants, whose income is high enough to exempt them from receiving tax credits that are available to US citizens under the Affordable Care Act.
      1. Certain unlawfully present persons who entered the United States without inspection, who have since created employment opportunities for American workers through their entrepreneurial activity, will be able to be paroled in place to avail of immigrant opportunities.
      2. Entrepreneurs, innovative researchers, inventors and founders will be receive national interest waivers to avoid the need for employer sponsorship and lengthy DOL review as necessary to prevent more routine foreign workers from taking jobs from US workers.
      3. Regulations will be implemented to allow beneficiaries of employment based petitions, who are in the United States and are subject to lengthy quota backlogs, will be able to adjust status, affecting an estimated 410,000 people.
    4. Job training will be extended for University graduates in programs focusing on science, technology, engineering and mathematics (STEM)
    5. Streamlined employment based immigration procedures will be made available for foreign workers and international corporate transferees, while continuing to protect American workers,
    6. Family separation will be reduced for persons waiting to obtain LPR status
    7. Persons in lawful status will be ensured by new regulations to have access to travel to their home country, through the expanded use of parole.
    8. Visa processing will be streamlined and modernized by eliminating redundancy and emphasizing efficiency.
    9. Public education will streamline pathways to citizenship.
  8. Expanding Provisional Waivers
    1. Provisional waivers will be expanded to all eligible immigrants to waive unlawful presence in the United States, beyond just immediate family members of US citizens, as the program currently allows.
    2. Criteria reflected in case law contribute to a finding of extreme hardship should be codified to include but not be limited to family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships.
    3. The Secretary of Homeland Security further directed the USCIS to consider criteria by which a presumption of extreme hardship may be determined to exist.
  9. Military service as pathway to LPR status
    1. Enlisted Service will be made available to spouses and children of US citizens
    2. Parole in place, effecting admission without leaving the country, will continue, as a policy enacted last year.
  10. The President will also be calling on Congress, (that is— the same Congress that has refused common sense comprehensive reform so far), to implement the following enforcement measures:
    1. Hire 20,000 additional Border Patrol agents, doubling the number presently on our borders,
    2. Crack down on companies who hire undocumented workers
    3. Create an earned path to residence and citizenship for undocumented immigrants who pay a fine, pay taxes, pass a background check, learn English, and go to the back of the line behind those persons currently waiting to immigrate but who can’t due to exhausted quotas and backlogs.
  11. Shifting Staff priorities
    1. Prioritization of immigration judges and court staff towards recent border arrivals
    2. Quick adjudication of priority cases and termination of non-priority cases in the exercise of prosecutorial discretion.
    3. The DOL will expand and strengthen immigration options for victims of crimes, by means of U visas, and victims of unlawful human trafficking, T visas, for persons who cooperate with government investigations seeking to arrest and prosecute the perpetrators. Victims will be encouraged to avail themselves towards the protection of their labor and employment rights and be protected against retaliation.
    4. The “secure communities program” will be replaced by “priority enforcement program” (PEP), for the following reasons:
      1. “Secure communities” has been long alleged of separating families by arresting and deporting parents of US citizens, many of whom were detected after being arrested for low level offenses (such as traffic violations).
      2. The Priority Enforcement Program will removal convicted criminals, deporting those serving time as soon as possible to avoid continued cost to the American taxpayer.
      3. Detainers will be discontinued, eliminating the request that ICE has issued to local jails and state and federal prisons to hold persons for a voluntary period of 48 hours or less, for ICE to take custody after serving their sentences.
      4. Instead or detainers, ICE will issue a request for notification by a law enforcement entity when a convicted criminal will be released in the near future. This will allow ICE to prioritize which persons to place under their custody, and which to decline commission to detention.
    5. Agency Personnel Organization, Classification and Pay rate will be Restructured
      1. Creation of a South Border “command and control” within 90 days of the president’s order in order to coordinate and better use border resources, coordinating US Customs and Boarder Protection, CBP, US Immigration and Customs Enforcement, ICE, and US Coast Guard.
      2. ICE job duties shall be realigned and job classification changed, with revised personnel pay structure to reflect shifting workloads, particularly within Enforcement and Removal Operations, ERO.