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President Obama’s Executive Order

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Frequently Asked Questions on Obama’s Executive Order December 2014

by Desmond P. FitzGerald, Immigration Attorney, Boston, MA [1]

Dear friends,

If you are like most of immigrants in the U.S., you are probably wondering who will benefit from President Obama’s recently announced Executive Order. You probably heard about the main benefits for undocumented immigrants that qualify for DAPA [2], but what does it mean for you exactly and how long will it take for the President’s Executive Order to be in effect? Also, you may want to learn why this Executive Order is within the President’s legal authority. Our newsletter this month, seeks to answer these questions with the limited information currently available and we will keep you updated as soon as more details on the Executive Order are revealed.

It is important to keep in mind, that the benefits under this executive order may only be temporary (this is not a law as many mistakenly call it), Therefore, you should still take action right now if you are eligible under the current immigration law to obtain an immigrant visa or US residency/Green Card [3] or any other type of immigration relief or visa, even if it can take some time. If you are interested in living permanently in the US, you should always apply for residency as soon as you are eligible. Additionally as part of the immigrant community in the U.S., we should keep the pressure on Congress to pass the proper legislation to ensure a path to citizenship for immigrants, so that they may continue to contribute as an increasingly productive part of our society. Please forward [4] this to everyone you know who may find U.S. immigration information useful.

Thanks for being a loyal subscriber to our U.S. Immigration Law Newsletter [5] and please contact our Boston Immigration attorneys [6] at (617) 303-2600 if you are interested in discussing your specific case and obtaining legal representation.

FREQUENT QUESTIONS ON OBAMA’S EXECUTIVE ORDER

1. Who will benefit from President Obama’s recently announced Executive Order?

The following groups of people eligible under the following categories, will stand to benefit from Obama’s executive order:

I. Expansion and Extension of DACA (Deferred Action for Childhood Arrivals)
The DACA deadline has been increased from June 2007 to July 1, 2010, meaning children who entered on or before July 1, 2010, who were under 16 at the time of entry will now be eligible for DACA benefits. (Learn more about the current DACA regulation [15])
Any individual who is granted DACA or a DACA extension, because they will be granted a work authorization for 3 years instead of the 2 years that the prior program had allowed.
II. DAPA (Deferred Action for Parental Accountability)
Parents of U.S. citizens and lawful permanent residents (step-parents are included if the marriage with the natural parent happened before the stepchild turned 18 years old), who have been present in the country since January 1, 2010, will be allowed to obtain employment authorization for three years, through a new program called Deferred Action for Parental Accountability (DAPA), if they pass the required background checks. It is expected that a program requirement will be that all parents of US citizen and legal permanent residents will pay taxes and support their children.
III. Expansion of I-601A waiver
The spouses and sons and daughters of lawful permanent residents and U.S. citizens will be able to use an I-601A waiver to eliminate the 3 or 10 year bar for unlawful presence that would require them to remain outside the US for this period of time before receiving their family-based residency. The current regulation only provided this benefit to spouses and children of US citizens.
IV. Employment Residency/Immigrant Visa Beneficiaries
Individuals who have an employment-based immigrant visa/ residency petition [16] pending will benefit from reforms to the visa bulletin which will make it more effective to use all available visas and make the priority dates more predictable.
V. Residents who are eligible to apply for Citizenship
The new program will promote citizenship education and public awareness for lawful permanent residents and provide an option for naturalization applicants to use credit cards to pay the application fees.
VI. Students
The number of individuals who will be eligible for OPT benefits will be expanded and the periods of time that OPT benefits are available will be extended.
VII. U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.

  • Spouses of certain H-1B visa [17] holders who are on the path to legal permanent residency, will be eligible for work authorization.
  • 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 will be clarified.
  • Unnecessary restrictions on career progression and job mobility will be removed for those in the lengthy adjustment of status process.
  • Certain eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, may be authorized parole on a case-by-case basis. Parole will allow them to enter the US and or remain in the US to work and potentially be eligible to reenter the US after foreign travel.
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2. What are the main benefits for undocumented immigrants that qualify for DAPA?

The direct benefits for most will be Employment Authorization and the relief from fear of deportation in daily living (even if it is only temporary). There are also complimentary benefits that may come with a work authorization, including, the possibility to obtain health insurance through employment, a driver’s license, auto insurance, the possibility to open up a bank account and have access to credit to buy a home, car or open up a business, and potentially the opportunity to obtain higher wages.

A benefit for those who have applied for residency or are going to apply for residency, also known as an immigrant visa, is that there will be a better system to predict when these visas will be available.

Read more about DAPA. [2]

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3. How long will it take for the President’s Executive Order to be in effect?

The USCIS reports that some benefits may be in effect as early as 90 days (DACA) from the President Obama’s announcement on Nov. 20th, 2014; while others can take as long as 180 days (DAPA and others) to take effect.

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4. What can immigrants eligible for DAPA start doing now to be ready when the recently announced Executive Order comes into effect?

Immigrants eligible for DAPA can start to prepare the documentation that will be necessary to prove that they meet the requirements for this benefit. For example,

  • Birth certificate to prove age and identity
  • Birth certificates of US born children or US resident children to prove parent/child relationship
  • Marriage certificate to prove the step-parent relationship exists (marriage to the natural parent must have happened before the child turns 18)
  • Documents that prove you have lived in the US for 5 uninterrupted years (i.e. lease agreements, utility bills, taxes, school records, medical records, etc.)
  • Court records and police records for any prior interaction with law enforcement (even if it was merely a traffic related incident)
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5. Why are some Republicans against the President’s Executive Order and have taken legal action against him?

There is a portion of the Republican party that is “anti-immigrant” (i.e. those also known as the Tea Party) and their leaders have previously promised their voters not to approve any law that provides benefits to immigrants that are in the U.S. without permission.

After having won a great number of seats in the recent election, and taking control of both houses/chambers in Congress, these leaders will not risk being viewed as supportive of immigration rights because a large number of Republican voters have expressed anti-immigrant sentiment. This was most clearly evidenced when the second most powerful Republican in the House of Representatives was recently voted out of office because he supported a moderate immigration bill.

Given the increased number of Republicans that have been recently elected, the Republican Party must “appear” to be strong and powerful enough to prevent the President from providing benefits to immigrants without their specific approval.

Taking legal action against the President, as they have already done, even if unsuccessful (as many legal experts believe, including our founder and Managing Director, Desmond P. FitzGerald), allows Republicans to save face by claiming that a “liberal judge” is to blame and in this way remaining true to their position and promises made to their electorate.

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6. Why is this Executive Order within the President’s legal authority?

The president has the right to form policies and implement programs to execute the laws of the United States (even Congress has recognized this), and in 6 U.S.C. 202 (5) the law directs the Secretary of Homeland Security to establish “national immigration enforcement policies and priorities.”  ”Withholding of a deportation action” and the presentation of a work permit, are included in the priorities related to immigration, which is essentially what the president has provided for in his recent announcement.

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7. Why did the President have to wait until now to issue this Executive Order?

The President’s party faced a very difficult election cycle in the midterm elections of November 2014 and new immigration policies are often unpopular with voters. Therefore, if the President had announced the details of his policy earlier, it would have likely had a significantly negative impact on the members of his party facing election and reelection. Now that the election cycle has ended, the President has more flexibility to implement new immigration policies. In addition, as recently as June of 2013, the legislature had been advancing an immigration bill which likely would have made the President’s executive order unnecessary. A bill can become law which has broader and more lasting authority than an executive order, and therefore it is preferable.

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8. What are the benefits the economy and businesses stand to gain from this Executive Order?

Our founder, Massachusetts immigration lawyer Desmond P. FitzGerald, agrees with most economists who believe that the President’s Executive Order would result in several economic benefits to the US, and that these benefits would even be greater if there was a comprehensive immigration reform by Congress. The following are several ways in which businesses and the economy may be affected by Obama’s executive order:

    1. An increased number of authorized workers may make it easier for employers to find the staff that they need to run their businesses as there will be a greater supply of qualified workers. This in turn can lead to greater economic efficiency and growth.
    2. Potential higher wages for immigrants will allow them to spend more and participate in our economy more fully.
    3. When immigrants have lawful employment and permission to stay they will tend to spend their income locally on goods and services provided by local businesses, as opposed to sending their money out of the US.
    4. Increased immigration expands the American workforce, which helps support our aging population and social security system.
    5. Increased tax revenue from authorized workers can reduce our deficit and provide greater government investment in important areas like improved infrastructure.
    6. Infrastructure investments benefit businesses in several ways. Better transportation can lead to increased business transactions and better access to markets and, these investments can generate construction contracts and employment.
    7. Changes in the immigration process can make it easier for highly skilled immigrants to stay in the US, to lead and create new companies that can generate more employment and economic growth.
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If you are located in or coming to Massachusetts or surrounding areas and need assistance processing your immigration petition, personal injury claim [19] or criminal matter [20], call to make an appointment with one of our experienced Boston immigration, criminal and personal injury lawyers, at: (617) 303-2600.

Sincerely,

The FitzGerald & Company team

Previous newsletters by our Boston immigration Lawyers [5]