How will President Obama’s Executive Action of November 20, 2014 affect me and my case?

As of this writing, I cannot say with certainty about all of the President’s announcements, but I recommend you pay attention to future announcements which will help clarify things. Below I will write about the different programs and initiatives and then give my opinion about how it will affect the processing of cases.

Deferred Action for Childhood Arrivals
Some things we know more about. One of the executive orders expands the population eligible for the Deferred Action for Childhood Arrivals (DACA) program. The new program is for young people who came to this country before turning 16 years old and have been present since January 1, 2010. The old DACA had an upper-age limit but the new program has no age limit. So if a person arrived before he or she was 16 and is now 45 years old, your age will not disqualify you from using the program. The new DACA extends the period of deferred action and work authorization from two years to three years. This program should be operational within 90 days of the President’s announcement.

Deferred Action for Parents of US Citizens and Lawful Permanent Residents
A new program of deferred action is for parents of U.S. citizens or lawful permanent residents who have been in the country since January 1, 2010. This program allows for three years of deferred action and employment authorization provided the parent passes required background checks and other requirements. This program should be operational within 180 days of the President’s announcement.

Provisional Waiver Expansion
Another executive action expands eligibility for the I-601A Provisional Waiver program. Currently the process only allows the parents, spouses, and minor children of a US citizen to benefit. The new initiative expands the use of provisional waiver of unlawful presence to include the adult children of a US citizen. It also allows the spouses and adult children of lawful permanent residents to benefit. It is unclear when the Department of Homeland Security will amend its regulation to include the new categories of beneficiaries.

The first three actions mentioned above mainly deal with people and family unification. The next actions ordered by the President deal with money, employment, and business.

Money, Employment, and Business Initiatives

Optional Practical Training
The Optional Practical Training (OPT) program is supposed to be further strengthened to expand the university degrees eligible for OPT as well as to increase the length of time a person can use OPT so that the United States benefits by keeping its most talented university foreign graduates instead of forcing them to return home and benefit another country. US Citizenship and Immigration Services and US Immigration and Customs Enforcement agencies are supposed to develop and implement the plan, but no time table has been given.

Promotion of Research and Development
This initiative will allow certain investors to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation. Also, entrepreneurs, researchers, inventors, and founders will be eligible for national interest waivers. US Citizenship and Immigration Services is supposed to clarify the standard used for national interest waivers to help make it easier for the job creators to apply. No time table or deadline has been given for this to happen.

L-1B Intracompany Transferee “Specialized Knowledge” Program
Lack of guidance and inconsistent decisions for the international companies who benefit the US economy have resulted in many employees being denied the L-1B benefit to temporarily work in the United States. The President’s administration views this inconsistency as a problem (as I do too) and has directed US Citizenship and Immigration Services to provide clear guidance so companies know what is expected of them when transferring employees with specialized knowledge not easily obtainable in the United States. No time table or deadline has been given.

Employee Portability to Keep Talent Here
Foreign national employees in the US who have been certified by the government to be working in an area that has been determined to have a shortage of American workers are usually unsure whether his or her one-year or 10-year wait to become a permanent resident will actually result in permanent residency. Current rules allow the person to transfer to another job if the new job is in the same occupation which has a shortage of American employees. The current rules are unclear, which results in some US companies not receiving more employee talent and some foreign national employees having to leave the US if his or her current employer goes out of business after the employee has waited for permanent residency for months or years. It has been ordered that the government make these rules more clear, but no deadline has been set to do so.

Modernizing the Employment-Based Immigrant System
The President believes there are too few immigrant spots available for employees who will benefit the US economy. The current government process used by the US Department of State and US Citizenship and Immigration Services does not fully utilize all of the spots so many of the limited spots are not used because of the process’ inefficiencies. It has been ordered that both agencies become more efficient with the allotment of spots or visas and there is no time table to come up with the changes.

What will happen?
I think it is safe to presume that the deferred action for childhood arrivals program as well as the deferred action for parents will happen according to their respective 90-day and 180-day deadlines. The current DACA system is a model that can be used for these programs.

The expansion of the provisional waiver program may eventually happen and it might happen in 2015.

I view the other changes to the money, employment, and business initiatives to be mostly a wish list for now. I will not believe they will happen until I see the federal agencies actually change their rules and procedures. That is because there is no time frame for their action and the government agencies are staffed by people who have their own agenda, which may differ from the President’s agenda.

The agencies are full of good people, but they will not be in a hurry to implement changes that have no deadlines since they know the President will not be in office much longer and they know a new President could change course. They also know that the US Congress could change the law to make these initiatives moot. Even if the agencies try to implement the changes quickly, the change that actually happens may look very different than the President’s original intention.

The only thing that will happen for sure now is that parents of US citizens or lawful permanent residents will be eligible for a deferred action program and that the current deferred action for childhood arrivals program will be expanded. This will create an influx of two to five million cases very soon.

One program will begin within 90 days and the other will happen within 180 days. US Citizenship and Immigration Services will be hiring a lot more people to handle this enormous caseload and they will be busy, which means there will be fewer resources to figure out the plan for the other initiatives.

I hope I am unexpectedly surprised and see timely responses by the government agencies to the actions ordered with no deadlines, but it might be a year or more before we get specific procedures and guidance from them, if ever. I also hope Congress can get its act together and make the beneficial changes more quickly for everyone involved.

Possible Things to Do
Since millions of cases will begin soon, the immigration system is going to be overloaded whether you live around our office in Tampa, Florida or not; and in my opinion that will slow down the operations of all of the agencies involved.

If you have a case currently pending with the agencies, wish for good luck that your case is not slowed down. If you have a case that you want to file, but have been delaying for some reason, you might want to file it as soon as possible.

If you are eligible for one of the new deferred action programs, then talk with a qualified immigration lawyer to make sure you are properly screened before applying for the program. Approval is discretionary which means the government can say “yes” or “no” and in some cases they will try to deport people who are denied and have certain crimes in their past however minor or major. You can also start gathering information and documents that show your:

 Identity and Age
 Relationship to a US citizen or lawful permanent resident
 Residence in the United States for the last 5 years
 Arrival in the United States on or before January 1, 2010
 US Immigration History
 US Immigration Court History
 Criminal history

For people who would be covered by the money, employment, and business initiatives if they actually existed, I recommend patience and awareness. Keep up with the news and contact a qualified immigration lawyer periodically to see if anything has changed that could help you.

If you have any questions regarding the new immigration policies and your eligibility, and you would like to call me, Shawn Mesa, to set up an appointment, please do so at (813) 679-5780.

Disclaimer: This information is provided as a public service and not intended to establish an attorney-client relationship. Any reliance on this information is taken at your own risk.

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