Immigration Benefits Under President's Executive Order

Immigration benefits you may have under the President's executive order for illegal individuals and employment based individuals.

As you may be aware, on November 20 and 21st, 2014, President Obama announced a plan of immigration reforms known as “Immigration Accountability Executive Action.” These reforms will impact many categories of immigration, thus resulting in many benefits to about 11.5 million individuals and their family members who are unauthorized and living in the United States. The reform will also benefit employment based cases. The following is a summary of some of the major benefits:

The current Executive order does have a number of items that will benefit the individuals who are illegal here in the United States, or the employment based applicants subject to quota and H-4 individuals. It will also help many individuals whose cases are pending before Immigration court and are subject to removal. At the same time, one must be aware of the fact that the current order may or may not lead to Permanent Residence. This will certainly make millions of individuals eligible for some temporary benefits.

EXPANDING DACA (Deferred Action for Childhood Arrivals):

The current Deferred Action for Childhood Arrivals (DACA) program which has an age cap of 31 years of age will be revised. In fact, the DHS secretary, as per president's order, will eliminate the age requirement of 31. The new eligibility cut-off date by which an applicant must have been in the United States will be moved to January 1, 2010. Another change is that the work authorization will be granted for 3 years. The new three-year time period will also apply to the cases pending for DACA renewal applications. DACA is temporary relief from removal and also provides a benefit of work authorization. The individual must submit for biometrics and pass a background check and pay taxes.

DAPA (Deferred Action for Parental Accountability):

Unauthorized parents of US citizens or Permanent resident of any age can apply for the benefit of DAPA. This is deferred action for parents of US citizens or Permanent Residents. The DACA and DAPA combined are estimated to benefit 4.4 million individuals.

USCIS is going to create a new deferred action process for parents, similar to DACA. Parents must meet the following criteria to qualify: The individual must have a U.S. citizen or Permanent Resident son or daughter (of any age) as of November 20, 2014; The individual must have been continuously present in the U.S. since before January 1, 2010 and additionally they have to be physically present in the U.S. on November 20, 2014 and have to be physically present at the time of requesting DAPA. Of course, the individual applicant must provide evidence to qualify for DAPA. Such individuals must pass a background check. The individuals who are subject to an enforcement priority under the new memorandum will not qualify for this benefit. The good news is that DAPA will be granted for a three-year period. USCIS will come up with more details and guidelines and hope to establish a system to accept the applications from eligible parents by May 2015. (approximately within 180 days from the date of this announcement)

ICE and CBP are instructed to immediately begin identifying persons in custody who may qualify under the new DACA or DAPA and to proceed with administrative closure of such pending cases so that they can apply for the benefits under this program and their pending removal proceedings case can be closed.

Employment Based category to Benefit:

EAD FOR H-4 VISA HOLDERS:

Good news for individual on H-4. USCIS in a month or two will come up with guidelines on Employment Authorization (EAD) for H-4, the individuals who are the dependants of H1-B visa holders.

EB-2 AND EB-3 CATEGORIES:

The individuals who have approved I-140 (employment based immigrant petition), are caught in quota backlogs and are unable to file I-485 waiting for their priority date to be current may not have to wait any more to file I-485. Eventually the USCIS is going to come up with guidelines and regulations so that such employment based applicants should be able to file I-485 and obtain the benefits of I-485, pending adjustment. It is estimated to benefit almost 410,000 individuals. Make sure you do not proceed to file I-485 before USCIS comes out with the guidelines and consult with a professional immigration attorney to proceed further.

In fact, the USCIS is also planning to come up with some clarification about AC 21 where the individuals of employment based approved petitions can move to another position in the same field and it does not hurt their pending approved employment case. In other words, USCIS is planning to come up with more clarification and guidelines as to same or similar position. This may benefit the individuals who have I-140 approved or have pending I-485 and are restricted to move their employment of title of the position

Individual with removal proceedings:

There are various streamlining guidelines about the deportation process that may benefit some of the pending cases. One of those is that DHS or Immigration or ICE may remove the individuals who are a threat to society, however some individuals should not be removed who qualify for relief or if there are “factors indicating” they are not a threat.

Misdemeanants and new immigration violators include people convicted of a “significant misdemeanor” or three or more misdemeanors arising out of three separate schemes (excludes traffic and status-related violations); people who entered unlawfully after January 1, 2014; and people who have “significantly abused” the visa or visa waiver programs. The memorandum states that DHS “must” exercise prosecutorial discretion in the enforcement of the law.

Guidance for requesting prosecutorial discretion from ICE for individuals in custody, individuals in proceedings before EOIR, and individuals who are scheduled for removal and are not in ICE custody, has been published on the ICE website.

Depending on the initiative taken by the congress, outcome of the future elections in 2016, whether democrat or republican win the majority in both houses, and who will be the president, will decide who benefited or benefits from the current order. Certainly individuals who must take some initiative, this may only be the first step with hope to get further benefits of perfecting their status as the time progresses and the more favorable laws are announced and implemented.

You are strongly advised to contact a professional immigration attorney to seek appropriate legal advice as each case has its own facts. Consult an attorney before you make any plan for filing or make any decision and to find out if you are eligible to take benefit of this order.

This article is written by Attorney Parveen K. Goyal, an attorney with than 24 years of experience in practicing immigration. The law offices of Parveen K. Goyal, Ltd. are located in northwest suburbs of Chicago at 1625 West Colonial Parkway, Inverness, IL 60067 (near Harper College). Attorney Goyal can be reached at phone number: 847-584-7617.