News Update - December 31, 2014
Looking Back at 2014 Immigration-Wise
2014 in large part has been defined by President Obama’s executive action of November 20, 2014. The promise of the Immigration Accountability and Executive Action (IAEA) has uplifted the spirits of the majority of Americans which has said that it is behind immigration reform, will benefit the American economy greatly to the tune of $90 billion according to the nonpartisan CBO (Congressional Budget Office), and specifically impact the lives of 4-5 million undocumented immigrants, and hundreds of thousands of potential legal immigrants for the better. There are many important parts to the executive action, but we will focus on the following 4 parts:
1. I-601A expansion – The I-601A program originally came into effect in 2012 as a way in which U. S. citizens’ spouses, parents, and children under the age of 21 and unmarried could still have a viable way of obtaining their green cards if they could not adjust status in the U. S. mainly because they entered without inspection. Previously such individuals who were without the benefit of §245(i) (under which they could still adjust if they had a labor certification application or immigrant visa petition pending by April 30, 2001, and were physically present on December 21, 2000 (latest version)) would have to go overseas to be consular processed, denied, and only then be given the opportunity to submit an I-601 waiver of the 10 year bar based on extreme hardship to the U. S. citizen spouse or parent. The I-601A procedure has been much more appealing in allowing the waiver application (same standards as the I-601) to be filed and adjudicated while the person is inside the U. S. and if approved, the applicant then proceeds overseas for what has generally been a normal immigrant visa processing. The IAEA has improved the I-601A program in the following:
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Allowed access to the I-601A program for all classes of relatives for whom an immigrant visa is immediately available. This means that the qualifying relative for hardship purposes will no longer have to be a U. S. citizen spouse or parent, but could also be a permanent resident spouse or parent. Although further guidance must be given since the only guidance has been the DHS Secretary’s memo of November 20, 2014 stating expanded access “to all statutorily eligible classes of relatives”, one can envision situations in which even visa applicants with employment based cases could be eligible for the I-601A program if they had qualifying relatives for hardship purposes.
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Instructed U.S.C.I.S. to provide additional guidance on the definition of “extreme hardship” as it was the DHS Secretary’s assessment that additional guidance on the meaning of the phrase would provide broader usage of the waiver program. This instruction will definitely improve a program in which arbitrariness and capricious adjudications can happen since there is no administrative review allowed for any denials. It should be noted that the 2014 track record of the program has much improved as U.S.C.I.S. statistics show that the agency adjudicated 38,650 applications of which 27,433 (71%) were approved and 11,217 denied (29%). With the Secretary’s further instruction that U.S.C.I.S. should clarify the factors that are considered by adjudicators in determining whether the hardship standard has been met and to consider criteria by which a presumption of extreme hardship may be determined to exist, there is much encouragement for people to take advantage of this program and make applications if eligible.
2. Deferred Action for Parental Accountability (DAPA) – It is estimated that over 4 million may be eligible for this program which will likely begin accepting applications in May 2015. Rules for eligibility are that deferred action can be given to the parents of U. S. citizens or lawful permanent residents (of any age) who have been continuously present since 1/1/10, pass background checks and pay taxes (there was no language about back taxes and there is not an expectation that such will be required). The applicants cannot be enforcement priorities as listed in the executive action’s new “Priority Enforcement Program.” As of 11/20/14, there must be a U. S. citizen or permanent resident child in existence; the parents must be physically present in the U. S. on 11/20/14 and at the time of making a request for consideration of deferred action with U.S.C.I.S.; have no lawful status on 11/20/14; and present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate. This program should prove tremendously popular in 2015 as this law firm along with most others in the field of immigration have seen numbers of people in the past for whom nothing could be done but would now fit within the eligibility criteria of DAPA. Interest is expected to grow exponentially in 2015 as we get closer to May.
3. The death knell of “Secure Communities” and the rise of “Priority Enforcement Program” – The IAEA did away with Secure Communities, a tremendously unpopular program pitting law enforcement against immigrant communities. In Secure Communities, persons arrested by the local police would have their fingerprints sent to the FBI which would then relay crime or immigration violation hits to Immigration and Customs Enforcement (ICE) which would then slap immigration detainers on the individuals regardless of the offense under which they were arrested. Thus for such innocuous offenses such as a neighbor’s complaint over noise or broken tail light, individuals could find themselves in immigration proceedings and deported. Instead of detainers now, there will be a request for notification when a law enforcement entity is about to release a convicted criminal. DHS Secretary Jeh Johnson’s November 20, 2014 memo to the Acting Director of ICE states that ICE should put in place a program that continues to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement to the FBI for criminal background checks. However, ICE should only seek the person’s transfer to it under the new “Priority Enforcement Program” if the alien has been convicted of an offense of the following:
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Aliens engaged in or suspected of terrorism or espionage or who otherwise pose a danger to national security.
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Aliens convicted of an offense for which an element was active participation in the criminal street gang, or aliens not younger than 16 who intentionally participated in an organized criminal gang to further the illegal activity of the gang.
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Aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status.
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Aliens convicted of an aggravated felony.
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Aliens convicted of 3 or more misdemeanor offenses other than minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status, provided that the offenses arose out of 3 separate incidents.
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Aliens convicted of a “significant misdemeanor”, which for these purposes is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking;or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence).
ICE in special circumstances can issue a request for detention rather than request for notification, but must specify that the person is subject to a final order of removal or there is other sufficient probable cause to find the person is a removable alien.
The new guidance under IAEA goes a long way towards repairing the gap of trust which has resulted from enforcement by local police (many departments reluctantly participating in Secure Communities) and the local immigrant communities that saw many members being taken away for seemingly small and petty offenses.
4. Improving the current immigration benefits system – The DHS Secretary on November 20, 2014, directed U.S.C.I.S. 1.) To continue/enhance its work with the Department of State (DOS) to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas; 2.) Work with DOS to improve the system for determining when immigrant visas are available to applicants during the fiscal year; 3.) Carefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based (EB) immigrant visa petitions – specifically consider amending its regulations to ensure that approved long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers. (In the White House briefing on the same date, it was said that the ability of individuals with approved EB immigrant visa petitions caught in the quota backlogs to file for adjustment of status would be advanced to allow them to obtain the benefits of a pending adjustment. This was expected to impact about 410,000 people and would be done by regulation). The ability of highly skilled individuals especially from China and India caught in quota backlogs that last for years to quickly file I-485 applications for adjustment of status and gain the benefits of an employment authorization document (EAD) and portability (entitlement to change of employment to same or similar occupations when the I-140 petition has been approved and 180 days have passed since the filing of the I-485) cannot be overstated in giving these prospective immigrants more options and taking away some of the advantages of petitioning employers in matters of wages and benefits. Also the Department of Labor was instructed to seek means to improve its methods for handling labor certification applications through initiating a review of the PERM program and relevant regulations and seek input on the following:
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Options for identifying labor force occupational shortages and surpluses and methods for aligning recruitment requirements with demonstrated shortages and surpluses.
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Methods and practices designed to modernize the U. S. worker recruitment requirements.
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Ranges of case processing time frames and possibilities for premium processing.
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Application submission and review process and feasibility for efficiently addressing nonmaterial errors.
2014 will also be a year remembered for unfortunate misses and lapses in any number of immigration related situations. The principal 4 that come to mind are the following:
1. The failure of Congress to work on any immigration reform bill in 2014. In the wake of the IAEA, the GOP is rumored to be preparing a border enforcement bill and one to allow nearly 350,000 aliens to help out in low skilled jobs. Without the semblance of a partner in immigration reform, the value of the IAEA becomes more apparent every day.
2. The failure of the Obama administration to come forward with the executive action until after the midterm elections and squandering the opportunity to protect the Democratic majority in the Senate by invigorating pro-immigrant and youthful voting Americans who needed a reason to go to the polls. It is difficult to say whether the majority would actually have been saved, but the results could not have been any worse.
3. The failure of the Obama administration to come forward with a viable midterm election strategy other than to hide the President and his achievements and having the candidates distance themselves from him. Exit polls showed that the state of the economy was the first concern of the voting populace, the President’s strong suit but ineptly presented when seen in the light of an American economy that is the envy of the entire world except for China (most countries have double-digit unemployment including the latest newsmaker Greece with unemployment of 25%).
4. The failure of the Obama administration to come to the side of those escaping persecution in Latin America and instead attempting to deport children as quickly as possible and detaining many of them. History will not be on the side of the President when viewed in future years. This episode will be looked upon as an abysmal panicked response by an administration cowed by its political opponents.
Unfortunately failures nos. 2 and 3 may impact the IAEA as the strong Republican majorities in Congress are better able to lead charges attempting to derail the executive action and any other immigration actions that they dislike. [Please also note, however, that it is the writer’s opinion that when all Republican actions are done, the IAEA will remain standing.]
Thus in this writer’s view, the President and his administration were the chief newsmakers of immigration in 2014, with decisions impacting the field for good and bad. The ramifications of those decisions will be felt throughout 2015. |
