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.

US Senate Passes Immigration Reform Legislation

July 1st, 2013

On June 27, 2013, in a vote of 68-32, the US Senate passed comprehensive immigration legislation (S. 744 “Border Security, Economic Opportunity and Immigration Modernization Reform Act.”)  Passage of this bill is important, although it is not perfect, in order to advance real immigration reform, including increasing the number of visas for legal immigration (family and employment-based), legalizing undocumented aliens who have come here to work and creating new visa categories that will make our country more globally competitive (entrepreneurs visa).

Unfortunately, the compromise exacted in order to bring on board Republicans was an unnecessary, wasteful and harmful border security amendment.  This amendment requires an additional $40 billion in funding for border security, including the building of a 700-mile wall and the hiring of 20,000 additional border patrol agents.  This move is not needed, since the US government has already spent approximately $17  million in recent years for border security and border crossings are on the decline because of the recession.  Also, the costs of this behemoth of an amendment will be carried by the undocumented aliens who will already be saddled with extremely high immigration fees.  Furthermore, our southwestern border will now look like an interminable militarized zone unequaled anywhere in the world except at the border between North and South Korea.

The legislation faces an uphill battle in the US House of Representatives, which is taking a restrictive and defensive stance to immigration reform under Speaker of the House John Boehner.  He has vowed to not take up the Senate’s bipartisan legislation and to only proceed on the House’s piecemeal immigration bills if a majority of Republicans agree.  This is completely outrageous and anti-democratic, especially after the tireless efforts of a bipartisan group in the Senate, which has extensively debated all aspects of this bill.  For all of its efforts to come to naught because of a hostile minority in the House would not only be harmful to the US but would fly in the face of the wishes of the majority of Americans.

Senate Could Pass Immigration Legislation by July 4th

June 5th, 2013

Senator Charles Schumer (Democrat of NY) predicts that the Senate could pass the pending immigration reform legislation proposed by the bipartisan Gang of Eight by July 4th and that a strong vote in favor of it could sway the House Republicans.  Schumer hopes it will win 70 votes, including almost a majority of Republicans.  In the meantime, the Chairman of the House Judiciary Committee, Rep. Bob Goodlatte (Republican of VA), has stated that the panel plans on voting for a series of smaller pieces of immigration legislation instead of taking a comprehensive approach.  However, there is a bipartisan group of House members working on a comprehensive immigration bill, which they will probably release this month, and Rep. Goodlatte has not ruled out the possibility of a single immigration bill to be voted on by the House of Representatives.

A “Wiser” Lou Dobbs?

January 11th, 2010

What an absolute political turn-around to hear Lou Dobbs, on the Bill O’Reilly Show on January 8, 2010, sound like a kindler, gentler (as he puts it -“wiser”) soul.  If Lou Dobbs can advocate a comprehensive immigration reform that allows for undocumented workers to remain in the US based on practical and humanitarian reasons, then how can CIR not pass?  This is the most heartening news development I have heard for a very long time.  Let’s hope that it breeds some rationality in the hearts of the reactionaries.

Wall Street Journal Calls Immigration Reform a Stimulus

April 29th, 2009

In an April 27th editorial, the Wall Street Journal (WJS) supports immigration reform as the quintessential economic stimulus.  It states, “Immigrants are a smaller proportion of the U.S. population than in periods such as the late 1890s and 1910s, when immigrants gave the economy a jolt of growth.”  It then goes on to praise immigrants as the ultimate sources of job creation in the US: “Immigrants have had a disproportionate role in innovation and technology. Companies founded by immigrants include Yahoo, eBay and Google. Half of Silicon Valley start-ups were founded by immigrants, up from 25% a decade ago. Some 40% of patents in the U.S. are awarded to immigrants. A recent study by the Kauffman Foundation found that immigrants are 50% likelier to start businesses than natives. Immigrant-founded technology firms employ 450,000 workers in the U.S. And according to the National Venture Capital Association, immigrants have started one quarter of all U.S. venture-backed firms.”

What’s more, the WSJ states that other countries are actively recruiting foreign workers when the US Congress is simultaneously trying to restrict the flow of highly skilled and needed foreign workers into the US.  WSJ quotes Intel Chairman Craig Barrett as suggesting that instead of sending the half million higher-education students from overseas home when they graduate, we should “staple a green card to their diplomas.” 

It is time that Congress smartens up, stops it scapegoating of immigrants and finally allows the US to effectively compete in globalization. 

Major US Labor Unions Bolster President Obama’s Immigration Initiative

April 15th, 2009

President Obama’s recent pronouncement of his desire to move forward on comprehensive immigration reform within the next few months is being met by a growing chorus of support from a diverse array of groups.  The most recent bedfellows are two of the nation’s major labor groups – the A.F.L. – C.I.O. and Change to Win federation.  When Congress proposed comprehensive immigration legislation in 1997, these two groups could not agree on a common apprach and the legislation failed.

The accord between the A.F.L. – C.I.O. and Change to Win endorses legalization of the undocumented workers in the US but rejects any broad program for temporary nonimmigrant workers (guest worker program).  The business community will certainly oppose any legislation that does not include expansion of a temporary worker program, according to Randel Johnson, the Chamber of Commerce’s Vice President of Labor, Immigration and Employee Benefits.  Rather, the unions have endorsed the idea of a national commission to determine how many permanent and temporary foreign workers should be admitted each year to work based on the US labor market demand.  Tamar Jacoby, president of ImmigrationWorks USA, a group that organizes business to support comprehensive immigration reform, questions whether the commission will be effective in determining the supply and demand of workers.

Also, the unions face strong opposition from anti-immigration restrictionists who believe that undocumented workers are taking jobs from American workers.  However, the growing body of data shows just the opposite – that legalization of the estimated 12 million undocumented workers is the quintessential stimulus plan for our weakened economy.  More legal workers will mean an expanded tax base and the creation of new businesses and jobs for more Americans.  Furthermore, the A.F.L. – C.I.O. and Change to Win agree that legalizing the status of the workers would be the best way to protect labor standards for all workers.

Immigration Fallacy: Essential Workers Don’t Wait Their Turn to Immigrate

September 18th, 2008

One of the most demonizing myths about undocumented aliens is that they blatantly disregard our immigration laws and obtain an unfair advantage.   
The fact is, there is no avenue for the vast majority of undocumented aliens (those that are not documented or whose authorization to remain in the US has expired) to apply to become legal permanent residents or to even work here temporarily.  According to opinion surveys of undocumented aliens, 98 percent would prefer to live and work legally in the US if they were allowed to do so.  However, most of them are not eligible for temporary or permanent visas, and even if they were, the wait for such visas can be many years or even decades.
Nonimmigrant visas run almost the full gamut of the alphabet.  They are visas issued for a temporary period and for a specific activity.  For example, there is a B-1/B-2 visa for tourists, an E-1/E-2 visa for treaty traders and investors, an F-1 visa for students, an H-1B visa for professional workers, a J-1 visa for exchange visitors (au pairs, students, professors, etc.), an L-1 visa for intracompany transferees, a K-1 visa for fiances, an O-1 visa for extraordinary ability aliens, a P visa for athletes and entertainers, an R visa for religious workers, etc.  These nonimmigrant visas categories are very narrow and restrictive.
The H-2A and H-2B visas, the two primary nonimmigrant visas granting employment-authorization to essential workers, are inadequate for the millions of such workers in demand.  The H-2A visa applies strictly to agricultural workers for a temporary or seasonal position.  For the H-2B visa, the employer must demonstrate that the request for labor is a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.  There are only 66,000 H-2B visas available each year.
Last year when comprehensive immigration reform was on the political table, bipartisan guest worker legislation was proposed.  Such legislation would have created a nonimmigrant visa for sorely needed essential workers in positions that are permanent in nature, not seasonal like the H-2s.  If the guestworker visa had succeeded, it could have greatly ameliorated the illegal immigration conundrum in our country by legalizing essential workers alien in high demand.
 
There are four primary ways for foreigners to obtain the green card, which is legal permanent residency in the US.  These are through:  (1) employment; (2) family; (3) asylee and refugee status and (4) the Diversity Visa Lottery.  For the employment-based category, there are only 5,000 immigrant visas available each year for low-skilled workers such as gardeners and construction workers.  This means that it can be many years before they can apply for legal permanent residency.  As discussed above, there is no viable nonimmigrant working visa to allow the bulk of unskilled workers to remain in the US while they wait for permanent legal status in the US.
For the family-based category, if they are not sponsored by an immediate relative US citizen spouse, parent or child (over 21) then the wait can also be many years and even decades.  Also, the family-based category is restricted to spouses, parents and children (under 21) of US citizens (immediate relatives); unmarried children and spouses of legal permanent residents; married sons and daughters of US citizens; and brothers and sisters of US citizens.
Obtaining asylee or refugee status is very difficult and only a small percentage of applications for such status are approved each year.  The applicant must show that he or she has a reasonable fear of persecution, or suffered past persecution, on account of race, religion, political opinion, nationality or ethnicity, or membership in a particular social group.  Asylee or refugee status is not available for victims of civil war, natural disasters, violent crime or extreme poverty.  There is temporary protected status (TPS) for citizens of countries in which the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that are so unsafe as to prevent the return of the foreign national.  The current countries designated for TPS are Burundi, El Salvador, Nicaragua, Honduras, Sudan, Somalia and Liberia. Almost all undocumented workers wish to become legal and permanent members of our society but are unable to do so because of the dearth of visas.  They do not gain any unfair advantages living in the shadows, but rather are some of the most disadvantaged, vulnerable and exploited members of our community.  It is time that we grant these hard-working and critically needed workers the status they covet and deserve.
The Diversity Visa Lottery is exactly what it says, a lottery.  Only 50,000 visas are available each year and 100,000 individuals are selected each year to apply for one of these visas.  Only individuals from certain countries low demand countries – can apply and citizens from India or China are not included.

Commerce Secretary Supports Comprehensive Immigration Reform

June 11th, 2008

The following is a strong statement from Commerce Secretary Gutierrez, from a June 9, 2008, State of Immigration Address,  in favor of comprehensive immigration reform and acknowledging the deleterious dearth of immigrant, H-1B and H-2A and H-2B visa numbers, which are critical to allowing our economy to remain competitive:

“I would like to talk a little about the business environment and what is happening in the business community as it refers to immigration and the need for immigration reform. There’s a lot of discussion about the burden of immigration but there is not enough conversation about the risk of not having enough immigrants, especially a risk to our economy and a risk to our competitive position as it relates to the rest of the world.

So as you can see from the Secretary’s comments immigration reform remains a top priority for the Bush Administration. In the absence of legislation from Congress we’ve been proactively tackling this issue head on with as many administrative actions as possible.

The American people want and deserve a thoughtful, broad-based approach to immigration that focuses on the security and the economic prosperity of our country. Last August, Secretary Chertoff and I announced a package of administrative reforms that sharpened existing tools to protect our citizens and make our immigration system more workable.

We’ve made strides in securing our border. In fact, we’ve made great strides in securing our borders and enforcing existing immigration laws. But we cannot neglect our economic security; and that’s exactly what we’re doing by not passing comprehensive immigration reform.

At a time when we are facing tough economic challenges, our actions must boost our economy, not hamper it. The reality is that we simply do not have enough workers at both ends of the spectrum and I will repeat that. Our reality as a nation is that we do not have enough workers at both ends of the spectrum. That means for low-skilled, field laborers, all the way to high-skilled technology workers.

For example, for the fifth straight year our H-1B cap was filled at or before the start of the fiscal year. This year the cap was reached in one week. That’s why, as Secretary Chertoff mentioned, we are proposing administrative reforms to our high-skilled programs and to the H-2B non-agriculture temporary worker program.

In addition, we have proposed changes to the H-2A agricultural seasonal worker program. The changes will make the H-2A system more efficient and ensure an orderly and timely flow of legal, foreign workers. They will also protect the rights of all agricultural workers, American and foreign, and make no mistake we need both. We don’t have enough domestic workers to meet the food needs of our country.

The New York Times ran an article with the headline “Shortage of Labor to Cut Food Supply: Farmers Handicapped by Lack of Help Reduce Their Crop Acreage.” That headline and the article ran in 1920. Coincidently that was amidst one of the worst anti-immigration waves that we have ever seen.

Nearly a century later we face similar challenges, but this time, rather than reduce consumption we’ll have to turn to foreign producers or move our farms overseas to feed our families. In fact, that is already happening. A survey by the U.S. Farm Group, Western Growers, indicated American companies now farm more than 45,000 acres of land in Mexico employing 11,000 people.

At a time when we are looking to further secure our food supply to tighten our import safety and to continue to increase and contribute to world supply because of the prices of food, we should not encourage the outsourcing of American agriculture. And what Congress is doing by avoiding to pass comprehensive immigration reform is effectively encouraging the outsourcing of American agriculture.

We know there are employers who have not been able to fill many jobs with American workers. We simply can’t ignore the problem and hope that the issue will go away. A comprehensive solution remains the best and the most long term option. Without it, we’re getting a piecemeal approach, which is something we talked about when we mentioned the fact that comprehensive reform had failed, we talked about the fact that we were going to get a piecemeal approach to a national issue.

For example, in 2007 states enacted 240 immigration laws. That’s up from 84 the year before. Immigration is being debated in every capital in the country. A total of 1,562 immigration bills were introduced last year. This patchwork of laws is untenable in the long term. So we will continue to look at ways to improve existing programs and address all aspects of immigration. Other major economies around the world have realized the need for immigration policy to help them grow their economies, and we are all competing for growth, and everyone is trying to grow their economies and most major economies have realized that they cannot grow without a comprehensive immigration policy.

Our country has a long history of making immigration work. We have more experience than any other nation and it has been one of our greatest advantages, if you look back through our economic history we would not have accomplished what we have accomplished if it were not for the help and the work of immigrants.

We can make immigration an advantage that will last for a century. The issue is not going to go away. Regardless of who is President and regardless of which party is in power, immigration will remain both a tough challenge but also a tremendous opportunity for our country if we get this right, if we approach it in a thoughtful way, and if we are decisive about confronting a problem that will not go away.”

Such remarks ring with reason and practicality.  Let’s hope that such astute understanding will wash over the benighted in Congress.

“Illegal Immigrant” – A Damaging Term

November 2nd, 2007

The New York Times editorial is right on about the inappropriate and deleterious use of the word “illegal” to describe foreigners in the US who do not have proper immigration status.  The editorial states:

“Since the word modifies not the crime but the whole person, it goes too far. It spreads, like a stain that cannot wash out. It leaves its target diminished as a human, a lifetime member of a presumptive criminal class. People are often surprised to learn that illegal immigrants have rights. Really? Constitutional rights? But aren’t they illegal? Of course they have rights: they have the presumption of innocence and the civil liberties that the Constitution wisely bestows on all people, not just citizens.

But at least “undocumented”and an even better word, “unauthorized”contain the possibility of reparation and atonement, and allow for a sensible reaction proportional to the offense. The paralysis in Congress and the country over fixing our immigration laws stems from our inability to get our heads around the wrenching change involved in making an illegal person legal. Think of doing that with a crime, like cocaine dealing or arson. Unthinkable!”

We must stop thinking of immigrants unlawfully in the US as dangerous, undesirable criminals.  Rather, we should view them as desperate, hardworking and brave, some willing to risk their lives to come here.  Who are we to judge people who escape countries with high poverty rates and little chance of a decent quality of life?  Where is our compassion for those who have the misfortune of not being born in a nation with relative security?  Let the Statue of Liberty once again stand for our true principles.