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The President’s Executive Action on Immigration. What Does it Mean?

On November 20, 2014, President Barack Obama announced a number of administrative fixes to the enforcement and process of US immigration law that could positively affect noncitizen family members who do not have lawful immigration status. There are also numerous employment-related provisions that are not the subject of this article.

On the family-based front, the President’s message was that the US government was going to use its resources to deport “felons, not families.” After these changes in enforcement priorities, there are three programs that could greatly benefit undocumented immigrants who have significant ties in the US: (1) Deferred Action for Parental Accountability (DAPA); (2) an expansion of Deferred Action for Childhood Arrivals (DACA); and (3) an expansion of a “stateside Provisional Waiver.” If you are no longer in lawful immigration status or never had lawful immigration status, depending on your circumstances, you may qualify for one or more of these programs.

Both DACA and DAPA are nearly identical in terms of the benefits derived from these programs. Successful applicants for both programs will receive relief from deportation and a work permit for three years. If DAPA is like DACA, it will be renewable after the initial approval period. Additionally, there is a possibility that DACA and DAPA recipients can receive permission from the Department of Homeland Security (DHS) to return home and reenter the US without forfeiting their newly acquired legal status. To qualify for DAPA, the foreign national must have (1) a US Citizen or lawful permanent resident (LPR) child; (2) five years of physical presence in the US; (3) not be deportation priority (including not having certain criminal convictions); and (4) have paid taxes. DACA requires a similar set of considerations, except the noncitizen must have been physically present in the US since before the age of 16 and have graduated or be currently enrolled in high school at the time the application is filed. Fortunately, DACA expanded its eligibility from people who were 31 and younger at the time of the initial announcement to anyone at any age, so long as they entered before turning 16. Additionally, the DACA validity period was expanded from two to three years. It is important to note, however, receiving relief under DACA or DAPA is not the same as having a green card and, though unlikely, the programs could be cancelled by future presidents.

President Obama also expanded the class of eligible people for the stateside waiver program. Under some circumstances, marriage to an LPR or US citizen will not enable the foreign national to apply for a green card in the US. If the noncitizen does not qualify to receive their green card in the US, foreign nationals will need to return to their home country and apply at the consulate. Unfortunately, depending on the circumstances of entering the US and of the amount of time resided in the US without permission, a noncitizen may be subject to a 3/10 bar upon exit of the US. There is a waiver for the 3/10 bar, but that process can be lengthy and in some cases take up to 18 months. The significant amount of time being separated from many foreign nationals’ loved ones served as a deterrent to applying for this waiver. Thus, in January 2013, President Obama announced a provisional waiver that would allow qualified applicants to wait for their consular interviews inside the US. One of the biggest criticisms of the initial program was that only foreign nationals with US Citizen Spouses could request the waiver, though green card holders could also request a waiver for their spouse, if the undocumented spouse without status was willing to wait outside the country. Fortunately, the Obama Administration changed the rules on who can apply to be in line with the consulate rules. Now, a US Citizen Spouse or an LPR Spouse, whose visa is immediately available, can file for a waiver of the 3/10 year bar and the undocumented spouse can remain in the US while waiting for the green card interview at the US consulate abroad.

Although highly controversial, through these programs President Obama is making strides to create an immigration system that tries to keep families together and to give people with deep roots in the US an opportunity to stay.

You may also contact Gary Perl in the San Diego office at gperl@fragomen.com or (858) 793-1600.

Mitch Wexler is a Partner with the international immigration law firm, Fragomen, Del Rey, Bernsen & Loewy, LLP. He manages the firm’s Irvine & Los Angeles offices. He has been practicing immigration law for over 29 years and is a Specialist in Immigration & Nationality Law, certified by the State Bar of California, Board of Legal Specialization. He welcomes all queries to mwexler@fragomen.com or (949) 660-3531.

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About the Author: Mitch Wexler is a Partner with the international immigration law firm, Fragomen, Del Rey, Bernsen & Loewy, LLP. He manages the firm’s Irvine & Los Angeles offices. He has been practicing immigration law for over 29 years and is a Specialist in Immigration & Nationality Law, certified by the State Bar of California, Board of Legal Specialization. He welcomes all queries to mwexler@fragomen.com or (949) 660-3531.

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