Key Facts on President Obama’s Immigration Action – Via USCIS.gov

Via USCIS.gov

Fixing Our Broken Immigration System Through Executive Action – Key Facts

The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.

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Why President Obama and the Administration must Maintain Focus on Improving Business Immigration

A recent article by CNBC entitled “Investors to Obama: We need more foreign workers” explores the substantial problems faced by investors and entrepreneurs in securing sufficient numbers of foreign professional workers: the engine of innovation in the U.S.  Last year we met the H-1B cap the first week it was open, again: the only solution to the problems highlighted in the article is an increase in H-1B visas, else the demand for the same will relocate to a country like Canada, which intelligently recognizes the true value of such talent.

The CNBC article was forwarded to me by a highly capable entrepreneur/investor client of mine.  His situation warrants a short discussion, because it is supports the message in the article as well as the broader subject of our defective Business Immigration laws.  This client moved his family to the U.S., and recently invested almost $500,000 in a new U.S. based business which employs nine (9) U.S. workers.  Further, this client has purchased two Mercedes Benz vehicles and plans on buying a large house and, in the near term, investing another $1 to $5 million dollars in the U.S. – but only if USCIS approves an extension of his Business Immigration case. Unfortunately, USCIS seems a step away from denying his case, as our 1200+ page application on his behalf (which by the way weighed more than a newborn baby) was met with a ten (10) page Request for Additional Evidence (“RFE”).

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Details on the President’s “Executive Actions on Immigration” – via USCIS.gov

VIA USCIS.gov

Executive Actions on Immigration

On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

These initiatives include:

  • Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years
  • Allowing parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks
  • Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
  • Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs
  • Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee |
Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. Subscribe to this page to get updates when new information is posted.

Next steps

USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.

Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative.

While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish your:

  • Identity;
  • Relationship to a U.S. citizen or lawful permanent resident; and
  • Continuous residence in the United States over the last five years or more.

We strongly encourage you to subscribe to receive an email whenever additional information on these initiatives is available on our website. We will also post updates onFacebook and Twitter.

Share this page with your friends and family members. Remind them that the only way to be sure to get the facts is to get them directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, go to the Avoid Scamspage.

Below are summaries of major planned initiatives by USCIS, including:

  • Who is eligible
  • What the initiative will do
  • When you can begin to make a request
  • How to make a request
1. Deferred Action for Childhood Arrivals (DACA) program
Who
  • Current DACA recipients seeking renewal and new applicants, including individuals born prior to June 15, 1981, who meet all other DACA guidelines.
What
  • Allows individuals born prior to June 15, 1981, to apply for DACA (removing the upper age restriction) provided they meet all other guidelines.
  • Requires continuous residence in the United States since January 1, 2010, rather than the prior requirement of June 15, 2007.
  • Extends the deferred action period and employment authorization to three years from the current two years.
When
  • Approximately 90 days following the President’s November 20, 2014, announcement.
How
2. Deferred action for parents of U.S. citizens and lawful permanent residents
Who
  • An undocumented individual living in the United States who, on the date of the announcement, is the parent of a U.S. citizen or lawful permanent resident and who meets the guidelines listed below.
What
  • Allows parents to request deferred action and employment authorization if they:
    • Have continuous residence in the United States since January 1, 2010;
    • Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014; and
    • Are not an enforcement priority for removal from the United States, pursuant to the November 20, 2014, Policies for the Apprehension,Detention and Removal of Undocumented Immigrants Memorandum.

Notes: USCIS will consider each request for Deferred Action for Parental Accountability (DAPA) on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats.

When
  • Approximately 180 days following the President’s November 20, 2014, announcement.
How
  • Subscribe to this page to receive updates by email.
3. Provisional waivers of unlawful presence
Who
  • Undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are:
    • The sons and daughters of U.S. citizens; and
    • The spouse and sons or daughters of lawful permanent residents.
What
  • Expands the provisional waiver program announced in 2013 by allowing the spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to get a waiver if a visa is available. There may be instances when the qualifying relative is not the petitioner.
  • Clarifies the meaning of the “extreme hardship” standard that must be met to obtain a waiver.

Notes: Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver if a visa is available. For more information about the waivers program, go to the Provisional Unlawful Presence Waiverspage which will be updated over the next several months.

When
  • Upon issuing of new guidelines and regulations.
How
  • Subscribe to this page to receive updates by email.
4. Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs
Who
  • U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.
What USCIS will:

  • Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
  • Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
  • Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.
  • Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.
  • Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:
    • Have been awarded substantial U.S. investor financing; or
    • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
  • Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
  • Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use ofoptional practical training (OPT) for foreign students, consistent with existing law.
  • Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.
When
  • Upon issuing necessary guidance and regulations.
How
  • Subscribe to this page to receive updates by email.
5. Promote the naturalization process
Who
  • Lawful permanent residents eligible to apply for U.S. citizenship
What
  • Promote citizenship education and public awareness for lawful permanent residents.
  • Allow naturalization applicants to use credit cards to pay the application fee.
  • Assess potential for partial fee waivers in the next biennial fee study.

Notes: Go to the U.S. Citizenship page to learn about the naturalization process and visit the Citizenship Resource Center to find naturalization test preparation resources. You can also visit the N-400, Application for Naturalization, page.

When
  • During 2015
How
  • Subscribe to this page to receive updates by email.

Key Questions and Answers

Q1: When will USCIS begin accepting applications related to these executive initiatives?

A1:  While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes factors such as their:

  • Identity;
  • Relationship to a U.S. citizen or lawful permanent resident; and
  • Continuous residence in the United States over the last five years or more.

USCIS expects to begin accepting applications for the:

  • Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and
  • Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement.

Others programs will be implemented after new guidance and regulations are issued.

We strongly encourage you to subscribe to receive an email whenever additional information is available on the USCIS website. Remember that the only way to get official information is directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services.

Q2: How many individuals does USCIS expect will apply?

A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.

Q3: Will there be a cutoff date for individuals to apply?

A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.

Q4: How long will applicants have to wait for a decision on their application?

A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.

Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives?

A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.

Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?

A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months.

Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?

A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name, and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.

In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.

Q8: What if someone’s case is denied or they fail to pass a background check?

A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.

Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?

A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.

Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?

A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:

  • Assisting in the consideration of the deferred action request;
  • To identify or prevent fraudulent claims;
  • For national security purposes; or
  • For the investigation or prosecution of a criminal offense.

This policy covers family members and guardians, in addition to you.

Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?

A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services. For information on the existing parole-in-place policy for military personnel, please read this policy memorandum.

Glossary

  • Continuous residence: For a detailed explanation, go to the USCIS Policy Manual, Chapter 3: Continuous Residence.
  • DACA: Deferred Action for Childhood Arrivals, a program launched in 2012. For more information, go to the Consideration of Deferred Action for Childhood Arrivals (DACA)page.
  • Deferred action: A use of prosecutorial discretion to not remove an individual from the country for a set period of time, unless the deferred action is terminated for some reason. Deferred action is determined on a case-by-case basis and only establishes lawful presence but does not provide immigration status or benefits of any kind. DACA is one type of deferred action.
  • Prosecutorial discretion: The legal authority to choose whether or not to take action against an individual for committing an offense.
  • Provisional waiver: Waiver for individuals who are otherwise inadmissible due to more than 180 days of unlawful presence in the United States, based on a showing of extreme hardship to certain U.S. citizen or lawful permanent resident family members, which allows the individual to return after departure for an immigrant visa interview at a U.S. embassy or consulate. For more information, go to the Provisional Unlawful Presence Waivers page.

You can find definitions of other terms used on our website in Glossary of Terms.

Last Reviewed/Updated: 11/20/2014

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PRESS RELEASE FROM THE WHITE HOUSE: Presidential Memorandum — Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century

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Tonight: President Obama Addresses the Nation on Immigration Reform

President Obama will address the nation tonight to lay out the executive actions he’s taking to fix our broken immigration system. The address will be made at 8 p.m. ET and a live feed is available at WhiteHouse.gov/Live

This is a step forward in the President’s plan to work with Congress on passing common-sense, comprehensive immigration reform. He laid out his principles for that reform two years ago in Del Sol High School in Las Vegas — and that’s where he’ll return on Friday to discuss why he is using his executive authority now, and why Republicans in Congress must act to pass a long-term solution to immigration reform.

November 2014 Visa Bulletin: India EB2 Retrogresses

The Department of State released the Visa Bulletin for November 2014 which notes a slight forward movement in most categories, except the employment-based, second preference (EB2) India category, which retrogressed from May 1, 2009 to February 15, 2005. The Visa Bulletin, see below, also included notes on potential visa availability in the coming months.

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Florida Immigrant Coalition’s “Drive for Common Sense” seeks Drivers Licenses for all Floridians Regardless of Immigration Status

The Florida Immigrant Coalition (FLIC) is a statewide coalition of more than 30 member organizations and over 100 allies, founded in 1998 and formally incorporated in 2004.

Sample FL ID card

Sample Florida ID Card (source: http://www.flhsmv.gov)

The FLIC has organized “The drive for common sense” which would allow Florida drivers to hold a driver’s license regardless of immigration status.  A petition endorsing this position is available to sign on FLIC’s website which elaborates on the status quo:

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Major Retrogression Imminent for EB-2 India

Via aila.org

Per the AILA DOS Liaison Committee’s followup with Mr. Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, “retrogression of EB-2 India appears to be imminent, and could happen as early as November. The October 2014 priority date for EB-2 India is May 1, 2009. Given current demand, the priority date will retrogress, possibly to a date in early 2005.”

More details:

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DOL Statistics on H-1Bs from FY2014 Fourth Quarter (8/31/14)

DOL Statistics on H-1Bs from FY2014 Fourth Quarter (8/31/14)

The U.S. Department of Labor’s OFLC statistics on H-1Bs as of 8/31/14, including number of LCAs received, top occupations, states, and employers, as well as the number of certified, denied, and withdrawn LCAs, number of positions requested and certified, and percentage of applications timely processed.

Interestingly, of the top ten (10) H-1B Occupations:

  • The top three (3) H-1B Occupations involve Information Technology.
  • A total of six (6) of the top 10 H-1B Occupations involve Information Technology.

Link: H-1B_Selected_Statistics_FY2014_Q4 (PDF)

Customs and Border Protection has Designated (optional) Ports of Entry for First Time Canadian TN (NAFTA) and L Visa Applicants

via http://www.cbp.gov

Traveling on a TN or L-1 Visa From Canada?

Optimize Your Processing at these U.S. Ports of Entry

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Ashwin Sharma interviewed about H-1B visas in the September issue of the Florida Trend Magazine

3

via http://www.floridatrend.com

Florida Trend magazine’s article highlights many of the unreasonable constraints and scrutiny facing the H-1B professional worker program in the U.S. today.  Excerpt follows:

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DHS, USCIS Office of Inspector General, Information Technology Management Report entitled “Progress and Challenges” covers IT recommendations for USCIS

via www.oig.dhs.gov/

DHS, USCIS Office of Inspector General, Information Technology Management Report entitled “Progress and Challenges”

U.S. Citizenship and Immigration Services Information Technology Management Progress and Challenges (PDF, 36 pages – 1.34 MB)

Spotlight (PDF, 1 page – 125 KB)

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