Deferred Action for Parents (DAP) under President Obama’s Immigration Reform

November 24th, 2014

On November 20, 2014, President Obama announced a plethora of immigration benefits to fix many of the problems with US immigration law.  One of these was to expand deferred action to provide relief to some undocumented parents of US citizen and legal permanent resident children (DAP).  Deferred action is a type of prosecutorial discretion whereby the US government provides an individual with temporary lawful status in the US and relief from deportation.  Generally, deferred action is granted to individuals who have not committed serious crimes and who do not pose a threat to national security, public safety and border security.  Deferred action does not confer any lawful immigration status in the US, such as legal permanent residency or US citizenship.

The following are the eligibility requirements that the applicants must satisfy for relief under DAP:

 

  • have a son or daughter who is a US citizen or lawful permanent resident as of November 20, 2014;
  • have continuously resided in the US since before January 1, 2010;
  • are physically present in the US as of November 20, 2014, and as of the time of requesting deferred action;
  • have no lawful immigration status in the US as of November 20, 2014;
  • are not priorities for enforcement of deportation pursuant to US Department of Homeland Security’s apprehension, detention and removal policies; and
  • do not present any other factors that make it inappropriate to grant deferred action.

Immigration officers will review these criteria but the ultimate decision on granting deferred action will be determined on a case-by-case basis.

Applicants for DAP must submit biometrics to USCIS and undergo background checks.  Applicants are eligible to apply for employment authorization.  Even applicants who are in removal proceedings or who are subject to a final order of removal are eligible to apply with USCIS.  A grant of deferred action will be for three years.  The total filing fee is $465 and there will be limited fee exemptions.  USCIS will start accepting applications no later than 180 days from November 20, 2014.

Immigration Reform, Streamlining of High-Skilled Worker Cases and Deportation Relief

November 21st, 2014

On November 20, 2014, President Obama announced his immigration reform plan to provide deportation relief for certain undocumented workers and streamline the immigration process for highly-skilled workers in the US.  His executive actions on immigration include the following:

1.  Deferred Action for Parents (DAP):  Parents of US citizens and lawful permanent residents (of any age) who have been in the US continuously since January 1, 2010, pass background checks and pay taxes will be able to apply for deferred action for a three-year period.  The projection is that this plan will go into effect in 180 days.

2.  Expansion of Dream Act for Childhood Arrivals (DACA):  The age cap (currently 16) will be eliminated and the applicant must have been continuously present in the US since January 1, 2010.  It will be granted for three years and the projection is that it will take effect in 90 days.

3.  Foreign Entrepreneurs:  Certain investors will be granted parole (either in the US or to enter the US) for job creation.  Also, entrepreneurs, researchers, inventors and founders may apply for national interest waivers to obtain legal permanent residency.

4.  Filing of Adjustment of Status Applications and Portability:  Individuals with approved I-140 immigrant visa petitions who are unable to file the Form I-485 to adjust status to legal permanent residency because of visa quota backlogs will have their cases advanced so that they can apply to adjust their status and obtain the benefits of it (work authorization, travel permission and status in the US).

5.  STEM OPT Extension:  F-1 student on optional practical training (OPT) who are STEM (science, technology, engineering or math) graduates will have their OPT extended.

6.  I-601A Waivers:  The provisional waiver, allowing the prefiling of the waiver in the US before the alien departs the US to consular process abroad, will be expanded to include spouses and children of legal permanent residents.  The definition of extreme hardship will be expanded and clarified.

7.  H-4 EADs:  H-4 spouses of H-1B workers will be provided work authorization, such as L-2 and E-2 spouses of L-1 intracompany transferees and E-2 investors.

8.  Clarification on L-1 Intracompany Transferee Visas:  The Department of Homeland Security (DHS) will offer guidance on L-1 intracompany transferee petitions for foreign workers who transfer from a company’s foreign office to its US office.

8.  Modernization of PERM:  The Department of Labor will modernize the recruitment requirements and labor market test for the PERM labor certification (the first stage of the green card process for most employment-based foreign workers).

Let’s stay tuned for the details of all of these benefits.