Immigration by Executive Order

Last night, President Barack Obama announced a new Executive Order designed to address several (of many) immigration issues facing our country.  The first understatement is to acknowledge that his use of an Executive Order has drawn considerable controversy.

First, let's address the Executive Order issue.  President Obama, like Presidents Ronald Reagan and George H.W. Bush before him, has used an 'Executive Order' to address the problem of undocumented persons in the United States - but that doesn't necessarily make it a desirable approach.  I think everyone would agree that a well-considered, bi-partisan Congressional bill reflecting joint compromise would be a more acceptable and supportable approach to dealing with this issue.  Most people have forgotten, but a mere 16 months ago, the U.S. Senate was able to overwhelmingly pass such a comprehensive bi-partisan immigration bill.  Unfortunately, it never made it into the House of Representatives for a vote, so it appears that the best chance of handling the immigration issue in a cooperative legislative fashion is in our past.
 It should also be noted that since the President cannot pass legislation on his own, he is actually fairly limited in what he can do from an Executive standpoint.  Taking this action does not create a new opportunity for legal status, it does not create a new law and does not change the law as it now exists; it does, however, change the way certain portions of the law, interpreted in the federal regulations, are carried out.  In doing so, however, it broadens and expands benefits that certain undocumented persons may secure.

The Executive Order addresses five different initiatives to address the immigration system.  Three of these initiatives are concrete proposals that have real impact on certain immigration procedures.  The other two statements are simply aspirational comments.

Briefly, here are 3 fundamental areas of immigration practice affected by the President's actions:



DEFERRED ACTION FOR PARENTS OF U.S. CITIZENS

What it does:  Under this provision, certain persons who are not lawfully present in the U.S. but have children who are U.S. citizens or Lawful Permanent Residents ('green card' holders) would be able to gain the benefit of not being removed from the country ('deported').  And while they are in the U.S., they are given permission to work, pay taxes and abide by the labor laws of this country.

Who is affected:  Only parents who have been in the U.S. since January 1, 2010 and whose children are U.S. citizens or Lawful Permanent Residents may apply for this benefit.

What this changes:  Presently, this benefit known as 'Deferred Action' is already available in certain cases, and by Executive Order in the summer of 2012, was expanded to specifically include children who were brought to the U.S. before the age of 16.  This prior Executive Order is referred to as Deferred Action for Childhood Arrivals, (or 'DACA'). 
     Currently, U.S citizens over the age of 21 may sponsor a parent for Lawful Permanent Residency - but - typically the parent has accrued unlawful presence such that he or she would be barred from entering the U.S. for 10 years if the parent were to leave the U.S. to obtain his or her 'green card'.  
     The President's Executive Order of November 20, 2014 further extends 'Deferred Action' to allow these same parents the opportunity to remain in the U.S. and work based upon the presence of a son or daughter - regardless of age - who is either a U.S. citizen or a Lawful Permanent Resident.  It does not permit them an alternative opportunity to get Lawful Permanent Residency.

When it starts:  It is anticipated that this benefit will become available before the end of May 2015.



DEFERRED ACTION FOR CHILDHOOD ARRIVALS ('DACA')

What it does:  Under this provision, the population of eligible applicants for DACA (described above) is expanded by allowing more recent arrivals to apply, eliminates the age limit and extends work authorization to three (3) years.

Who is affected:  Persons who were brought here as children well before June 15, 1981 - as well as those who have arrived after June 15, 2007 but before January 1, 2010 -  may now apply for this benefit.  Current DACA recipients can take advantage of an additional 1 year of work authorization when they renew their request for DACA benefits.

What this changes:  Presently, one of the criteria for DACA is that the person was under the age of 31 as of June 15, 2012; this leaves out persons born before June 15, 1981 and who came to the U.S. as children.  Now, the age limit is eliminated and anyone meeting the rest of the criteria is eligible to apply.  In addition, the present policy requires that an applicant also prove that he or she has resided in the U.S. continuously since June 15, 2007.  The new provision extends that date to January 1, 2010, so that more recent arrivals may now also apply for this benefit.
     Finally, the original DACA Executive Order permits work authorization to a successful applicant for two (2) years.  That period of work authorization will now be extended to three (3) years.

When it starts:  It is anticipated that these extended benefits will become available before the end of February 2015.



PROVISIONAL WAIVERS OF UNLAWFUL PRESENCE

What it does:  Under this provision, the population of eligible applicants for a Provisional Waiver, ('601A' Waiver), is expanded to include sons and/or daughters of U.S. citizens and Lawful Permanent Residents.

Who is affected:  Older children of U.S. citizens - as well as children of Lawful Permanent Residents - who are now permitted to apply for a Provisional Waiver.

What this changes:  An individual who has remained in the U.S. unlawfully for 180 days - and leaves the U.S. - is subject to a 'bar' of returning to the U.S. for 3 years.  If the individual is in the U.S. unlawfully for 1 year or more, the 'bar' is 10 years.  A 'Waiver' of the 3 or 10 year bar is available for an individual who is subject to the 'bar' - but is nonetheless eligible to get a 'green card' at a U.S. Consulate abroad - if the person can show that it would create an 'extreme hardship' to a U.S. citizen spouse or parent of the applicant.  The 'Waiver'  gives this applicant the ability to return to the U.S. immediately without having to wait for the end of the 3 or 10 year 'bar'.  Normally, one applies for the 'Waiver' after he or she has left the country (thus triggering the 'bar') to interview for the 'green card' at the U.S. Consulate abroad. 
     Through executive action in 2013, President Obama created a 'Provisional' or '601A' Waiver that permitted an individual who is a spouse or child of a U.S. citizen to take advantage of the Waiver before the individual left the country for a 'green card' - thus giving certainty to the applicant that he or she could immediately return to the U.S. after the 'green card' appointment. 
     Under the new provisions of the November 20, 2014 Executive action, persons eligible to take advantage of the '601A Provisional Waiver' program will be expanded to include adult children of U.S. citizens as well as spouses and children of Lawful Permanent Residents, as well.
     Finally, the term 'extreme hardship' will be more clearly defined and, presumably, less restrictive, than before (although this remains to be seen).

When it starts: Unknown; generally whenever new regulations are issued.


Finally, there are several aspirational statements committing the Executive Branch of the U.S. Government to work towards refining, expanding and expediting the process for the Labor Certification Applications ('PERM'), employment authorization for certain dependents of H-1B visa holders, the immigration visa issuance process and others.

Over the next several weeks, we will be exploring in more depth the significance and practicalities of these new initiatives so that you can gain a better understanding of what may lie ahead.

Thoughts Following the 11^th Annual FBA Immigration Seminar:

The I-601(a) Waiver, DUIs, Tattoos, DACA and Arrabally and Yerrabelly, and My-a-Belly

May 2014

                Earlier this month, May 16-17, 2014, the Federal Bar Association hosted the 11^th Annual Immigration Law Seminar in Memphis, Tennessee. The Seminar kicked off with a presentation rejoicing of the (partial) death of DOMA and the good news this brought for same-sex couples seeking immigration benefits. It closed with a celebratory beverage on Beale Street for most attendees. I opted for a celebratory catfish dinner at a local creole restaurant with some old friends, but have no doubt Beale Street would have been a fabulous option as well.

                The general mood throughout the seminar was a mixture of hope—many practicing attorneys are still optimistic that comprehensive immigration reform is coming—and the sort of nervous energy that only trying to absorb enough information to make your head spin will create. Personally, I found the dense nature of the information being presented to be daunting and invigorating at the same time. As a new attorney, nothing is more encouraging than reviewing skills that are old hat, and as exciting as realizing how much more there is to learn when you are confident that it can be learned.

                The relatively new I-601(a) waiver took center stage for one of the presentations I attended and will be discussed in depth in this post. Issues regarding DUIs (citations for driving under the influence) and tattoos popped up in multiple presentations in a variety of contexts and will also be discussed. This post will end with a discussion of the potentially positive consequences of the recent Arrabally and Yerrabelly decision for DACA (Deferred Action for Childhood Arrivals) recipients who have received Advance Parole. As for the reference in the title to My-a-Belly, suffice it to say My-a-Belly enjoyed some tasty Memphis barbeque at the Memphis in May barbeque festival on the river…no event in Memphis would be complete without it!

                The 601(a) waiver is designed to help individuals who apply for immigrant visas through a qualifying relative, but would be barred from re-entering the US following their visa interview abroad. Unfortunately, prior to this waiver, individuals who would otherwise be eligible for a green card were not obtaining these benefits for fear they would leave the country to complete the process and then be found inadmissible based on their prior unlawful presence. This waiver allows the individual to prove that disallowing them from re-entering would cause extreme hardship to their U.S. relative(s) and grants them a waiver that cures the inadmissibility prior to their departure from the U.S. This removes the uncertainty of applying for a waiver after leaving the country from the equation.

                When this waiver was introduced immigration attorneys rejoiced—this cured a catch 22 too many clients faced! However, the high expectations for this waiver were thwarted by USCIS’s aggressive approach to the adjudication of these waivers. Attorneys at the Seminar estimated the denial rate was as high as 40%--half of which was based on USCIS’s belief there might be other grounds of inadmissibility—i.e. a criminal basis. In fact, nearly all waiver applications that included a DUI were denied on the ‘reason to believe there are other grounds of inadmissibility’ exception and most applications were subjected to boilerplate Requests for Evidence that delayed the process by requesting evidence already submitted. Fortunately, USCIS has decided to re-review previous denial sua sponte and has become more generous with approvals over the last month or so, but this waiver still has not lived up to the expectations many attorneys had at its inception.

                As mentioned, USCIS treated DUIs much more harshly in the 601(a) waiver context than anticipated, but it appears that this is part of a growing trend. In fact, many attorneys at the seminar reported that although DUIs are not considered a crime involving moral turpitude, and generally are not a ground for inadmissibility alone, they are increasingly used as a medical ground for inadmissibility. Individuals who have had a recent DUI may be requested to attend a psychological screening (especially if the process is in Juarez, Mexico), and some have even been required to attend Alcoholics Anonymous on the assumption that having even a single DUI may be indicative of alcoholism or other mental illness.

                Tattoos, often discovered in medical examinations, are also receiving a heightened level of scrutiny. There is a general assumption that tattoos indicate gang affiliations. Therefore, ask your clients about their body art, what it means, and why they have it so that they can be prepared to answer questions associated to these issues at their interviews. In extreme circumstances, be prepared to hire an expert to provide evidence that a tattoo is not gang-related.

                Not all of the reports from the Seminar were negative—one recent case, Arrabelly and Yerrabelly, provides a potential benefit for DACA recipients and others who receive Advance Parole. In the Arrabelly case, a couple seeking benefits received Advance Parole to visit their aging parents and left the country. Unfortunately, they had overstayed their visas and accrued more than one year of unlawful presence, triggering the ten year bar which disallows re-entry. Following an order of removal and an appeal, the BIA held that leaving the U.S. under Advance Parole did not effect a ‘departure’ under the Immigration and Nationality Act that would result in inadmissibility based on their prior, unlawful presence.

By logical extension, this may apply to DACA recipients who travel abroad on Advance Parole and re-enter with inspection—effectively curing problems created by a prior entry without inspection. In response to this notion USCIS has tightened up approvals of Advanced Parole for DACA recipients and it is expected that a future Memorandum interpreting Arrabelly will limit the case to its facts. But, for the moment DACA recipients lucky to receive Advance Parole may want to consider adjusting status, if possible, to avoid the issues any prior entry without inspection will inevitably create.

This year’s Seminar certainly left my colleagues and I with a lot to consider. We have clients who received DACA for whom we are anxious to try to adjust status, and may have future clients with DUIs or tattoos who will benefit from the information gathered at the Seminar related to these issues. I am looking forward to next year’s Seminar and learning more about these complex issues as my practice, and Hunter Smith and Davis’s practice grows in general.