Section Chair Provides Details on Immigration Executive Order

In a newsletter today to members of the Immigration Law Section, chair Bruce Buchanan breaks down President Obama’s executive order on immigration, explaining six key provisions of the order. Then on Dec. 10, Buchanan and fellow Nashville lawyer Sean Lewis will present a one-hour webcast on the executive action and other changes in immigration policy. Learn more at TBA CLE.

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What is Included in President Obama’s Executive Actions on Immigration?

By Bruce Buchanan*

On November 20, 2014, President Obama announced sweeping changes to immigration policy which will allow up to 5 million undocumented workers to obtain work authorization cards for three years and not be subject to deportation (also called removal) during this same three year period. In addition, President Obama’s Immigration Actions will expand the “provisional waiver” program, clarify the meaning of “extreme hardship” in provisional waiver cases, take actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers, expand opportunities for students to gain Occupational Practical Training (OPT) and set new removal priorities.[i]

Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents

The largest groups of individuals that will benefit from Obama’s Immigration Actions are parents of U.S. citizens and lawful permanent residents. It is estimated that approximately 4.4 million people will be eligible for this benefit. One of the purposes of this Action is to keep families together.

individuals meeting the following criteria will be eligible for deferred action: (1) have been in this country at least 5 years and present on November 20, 2014; (2) have children who on the date of the announcement are U.S. citizens or lawful permanent residents; (3) are not removal priorities under the new policy[ii]; and (4) present no other factors that would make a grant of deferred action inappropriate.  These individuals may apply for Deferred Action for Parental Accountability (DAPA), pay a filing fee and biometrics fee, and undergo a background check of all relevant national security and criminal databases, including DHS and FBI databases.

Applications for DAPA will not be accepted until approximately May 20, 2015.

The above criteria are to be considered for all individuals encountered by Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Thus, ICE, CBP, and USCIS were instructed to immediately identify those individuals meeting the criteria in order to determine whether to continue with the removal process.

Expand Deferred Action for Childhood Arrivals (DACA)

DACA will be expanded to include encompass a broader class of people.  DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered.  DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981.  The entry date will be adjusted from June 15, 2007 to January 1, 2010.  The remaining prior requirements of DACA will continue. These individuals will be able to obtain work authorization cards for three years and not be subject to deportation for three years.

Applications for expanded DACA will not be accepted until approximately February 20, 2015. It is expected 270,000 individuals will be eligible for this benefit.

Current recipients of DACA may be extended an additional year. The USCIS is exploring means of this extension.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

The provisional waiver program, implemented in 2013 for undocumented spouses and minor children of U.S. citizens, is expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.  The USCIS will provide additional guidance on the definition of “extreme hardship” in the near future.

Modernize and improve Immigrant and Nonimmigrant Programs to Grow the Economy and Create Jobs

The USCIS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers.  Specifically, some of these actions are:

· Issuance of a policy memo that provides additional guidance in green card adjustment of status portability cases (A21) where workers are moving to new jobs within the same company or to new employers they claim are in the “same or similar” occupations. The intent is to remove unnecessary restrictions to natural career progression and give workers increased flexibility and stability;

·  Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises;

· Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who: (a) have been awarded substantial U.S. investor financing; or (b) otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research;

· Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status; and

· Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program and improve consistency in adjudications; and

· Work with ICE to develop regulations for notice and comment to expand the list of STEM professions and extend the use of OPT for foreign students.

Revise Parole-In-Place Rules

USCIS will support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who are seeking to enlist in the U.S. Armed Forces.  Previously, parole-in-place was only available for current U.S. military service members and veterans.

Provide Consistency Regarding Advance Parole and a “Departure”

USCIS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action - they will not be considered to have departed. Thus, this directive will ensure the consistent application of the Matter of Arrabelly, 25 I.&N. Dec. 771 (BIA 2012) decision.


Overall, this is a significant change in a number of immigration policies, all of which the President has the legal authority to do without Congressional approval. Many other prior Presidents have taken Executive Actions related to immigration, including Presidents George W. Bush, Ronald Reagan, Bill Clinton, and George H.W. Bush.


[i] Additionally, the Immigration Actions will involve other actions, such as strengthening border security, increasing the pay of Immigration and Customs Enforcement (ICE) Enforcement and Removal officers (ERO), and ending the “Secure Communities” program and replacing it with “Priority Enforcement Program”, which are not covered in this article.

[ii]The Department of Homeland Security (DHS)will implement a new enforcement and removal policy that places as the three top priorities: (1) national security threats, convicted felons of “aggravated felony”, convicted gang members, and illegal entrants apprehended at the border; (2) those individuals, convicted of significant or three or more misdemeanors, other than minor traffic offenses, those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014, and those who have “significantly” abused the visa or visa waiver programs; and (3) those individuals, who are non-criminals, but who have failed to abide by a final order of removal issued on or after January 1, 2014.


*Bruce E. Buchanan is an attorney at the Nashville and Atlanta offices of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law. Bruce is the Chair of the Immigration Law Section.  He writes a blog on employer immigration compliance for, located at, and is a contributor to LawLogix’s I-9 and E-Verify Blog, located at and HR Professionals Magazine. Bruce may be reached at or (615) 345-0266.

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Slatery Decides Not to Join GOP AGs on Immigration Letter

Attorney General Herbert Slatery has confirmed that he did not join a group of Republican colleagues from other states in issuing a statement vowing “appropriate action” on President Barack Obama’s recent executive order on immigration. In a statement today, Slatery said he will give “careful consideration to all the relevant facts” before making an informed decision. The letter, organized by the Republican Attorneys General Association, was signed by 19 current and incoming attorneys general. The Greeneville Sun has the story from the Associated Press.

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Immigration Law CLE

Learn more Presdient Barack Obama's new executive order on immigration as well as many other changes in immigration policy on Dec. 10 at 6 p.m. Immigration Law section members will receive a discount. Learn more at TBA CLE.

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Obama Announces Immigration Changes

President Barack Obama last night announced a plan to allow up to 5 million of the country’s 11 million undocumented residents to obtain legal status in the U.S, the ABA Journal reports. As outlined in a press release, the president’s immigration reform plan calls for increased border enforcement, deporting felons rather than families and allowing parents of U.S. citizens or lawful permanent residents permission to stay here temporarily if they register, pass criminal and national security background checks and pay their fair share of taxes. In response to the announcement, Rep. Andy Holt (R- Dresden) and Sen. Mae Beavers (R- Mt. Juliet) are filing a joint resolution requesting Gov. Bill Haslam file a lawsuit against the Obama Administration, citing the commandeering of state resources, which they say would be required to execute the President's Executive Order, and the lack of enforcement of deportation statutes as warrant for legal recourse.

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Immigration Courts Backlog Grows as Obama Prepares Executive Action

More than 420,000 cases are pending in U.S. immigration courts, a steadily growing backlog that immigration lawyers say they hope will be eased by President Barack Obama’s soon-to-be-announced executive actions, the National Law Journal reports. Obama is set to announce tonight a series of executive actions he says will help fix what he has called the country’s “broken immigration system.” The executive actions are expected to include an expansion of temporary protections from deportation and an update to the guidelines that prosecutors use in deciding whether to close or stop pursuing certain cases.

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ABA Launches Website to Aid Unaccompanied Immigrant Children

The American Bar Association Working Group on Unaccompanied Immigrant Minors has launched the Immigrant Child Advocacy Network, a comprehensive website to provide information and resources for volunteer attorneys, advocates, policymakers who shape immigration policy and journalists who report on immigration issues. The Working Group was created by ABA President William C. Hubbard in response to the immigration crisis affecting unaccompanied minors and the critical need for additional pro bono lawyers to ensure children are provided legal representation in immigration proceedings. Learn more about the initiative at the ABA website.

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Memphis Court Clerk Worker Indicted on Federal Charges

Tammy Brooks Carpenter, an employee of the Memphis City Court Clerk’s office, faces a federal charge of embezzlement for partially voiding payments of 188 traffic tickets and keeping some of the money drivers paid, the Memphis Daily News reports. The indictment returned by a federal grand jury on Tuesday alleges Carpenter embezzled about $24,000. Ed Stanton, U.S. attorney for the Western District of Tennessee, said Carpenter was “targeting and preying upon vulnerable members of the Hispanic community,” in the scheme.

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U Visa Mischaracterized in Villegas Story

A story in yesterday’s issue of TBA Today mischaracterized the benefits provided by a U Visa, as reported by Nashville Public Radio. This visa is actually a special temporary visa for crime victims, which allows the holder to remain in the United States legally on a temporary basis, but does not automatically grant citizenship. Under certain circumstances, a U Visa can allow the holder to apply for a green card after three years.

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Woman Shackled While Giving Birth Granted U Visa

The Nashville woman who was arrested while nine-months-pregnant during a routine traffic stop in 2008 then shackled to a hospital bed during labor and after giving birth has been granted a U-visa. The visa allows victims of violent crime to live and work in the country. Juana Villegas’ case drew national attention to the issue of how pregnant women are treated while incarcerated and to Nashville’s 287(g) program. Now repealed, the divisive program let local police enforce federal immigration law. The city now leaves immigration status checks to federal agents, Nashville Public Radio reports.

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Volunteer Lawyers Needed for Immigrant Children

Most of the nearly 60,000 Central American children who have arrived on the U.S.-Mexico border in the last year still do not have lawyers to represent them in immigration court, and advocates are scrambling to train volunteer attorneys to help with the massive caseload, the Associated Press reports. The American Immigration Lawyers Association, among others, is training private attorneys on the country’s immigration laws and how to work with traumatized, Spanish-speaking children. The Times Free Press has the story. Anyone interested in volunteering should contact Memphis immigration lawyer Ari Sauer with Siskind Susser at (901) 682-6455.

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Grant Will Fund ‘Know Your Rights’ Training for Immigrants

The Mid-South Peace and Justice Center/Immigrant Rights Project has received a grant of $8,830 from GiVE 365, The Community Foundation of Greater Memphis’ dollar-a-day philanthropy program. The group will partner with the Tennessee Immigrant and Refugee Rights Coalition and Memphis Immigration Advocates to provide compressive “Know Your Rights” training to immigrant communities in Memphis. Formed in 2010, GiVE 365 members donate $365 a year, pool their money, and vote on the annual grant recipients. A total of $62,600 was given this year to support collaborative nonprofit efforts, the Memphis Daily News reports.

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Immigration Law Has Rock ‘n’ Roll Roots

The argument over President Barack Obama's legal authority to defer deportations begins 42 years ago with John Lennon and Yoko Ono, WSMV reports from the Associated Press. In 1968, Lennon was convicted of possession of "cannabis resin" in London and faced deportation in New York by the Nixon administration. In time, the effort to extend Lennon's stay in the United States would become an integral part of the legal foundation the Obama administration relied on in 2012 to set up a program that has deferred the deportation of more than 580,000 immigrants who entered the country without documents as children. The extent of Obama's legal authority is now central to the White House deliberations over what else Obama can do — and when — without congressional action to reduce deportations and give many of the 11 million undocumented immigrants living in the United States the ability to stay and work without fear of being removed.

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Judges Push for Independent Immigration Courts

Two judges called on Congress last week to tap into its constitutional power to make the swamped immigration court system an independent judicial agency, the Commercial Appeal reports. Judge Dana Leigh Marks, president of the National Association of Immigration Judges, and executive vice president Judge Denise Noonan Slavin spoke out about challenges in immigration courts and the need for independence. The immigration court system receives 1.7 percent of $18 billion allocated for immigration law enforcement. So far, cost has been the objection to making the immigration court system independent, but it would be a more efficient system, the judges said.

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U.S. to Consider Spousal Abuse in Immigration Claims

The Justice Department’s Board of Immigration Appeals has determined for the first time that domestic violence victims may be able to qualify for asylum in the United States. The ruling by the board that decides appeals from federal immigration courts is significant because it means that the government now recognizes domestic violence victims as a potentially protected class of people seeking refuge in the United States. The decision establishes a broad and firm foothold for an untold number of women whose asylum claims have been routinely denied in the past. WATE has more.

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Immigrant Children Filing for Asylum, Not Citizenship

A WREG story referenced in yesterday’s edition of TBAToday incorrectly reported that the current wave of immigrant children are trying to become U.S. citizens. TBA Immigration Law Section Chair Bruce Buchanan points out that the children are not attempting to become U.S. citizens, but are filing for asylum and, if granted, they would become asylees. After a year as an asylee, they can apply for permanent residence (green card) and continue in that status for a number of years. At some later date — at least 5 years depending on the age they obtained the green card — they could apply to naturalize to be U.S. citizens.

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Immigration Court Cases Start this Week

Court cases for Central American children seeking asylum started this week, WREG reports. An immigration lawyer told WREG there was a preliminary hearing yesterday where families learned how the process works and what to expect in the future. The Memphis court reportedly has 7,000 active cases on its docket, an overwhelming number for the two judges. Attorney Barry Frager said some of the originally scheduled court dates are likely to be delayed so the border children cases sent to Memphis can be heard first. He also expects two more judges to come on board by the end of the year.

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Many ‘Dreamers’ Not Signing up for Deportation Relief

Only 55 percent of the 1.2 million immigrants who were eligible for relief from deportation under the Deferred Action for Childhood Arrivals (DACA) program in 2012 have applied, according to a new Migration Policy Institute report. Under DACA, unauthorized immigrants who entered the United States before the age of 16 and were under the age of 31 in 2012 can win the right to work in the country if they can meet certain residency and education requirements. The Memphis Business Journal has more.

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Immigration Courts Work to Speed up Children’s Cases

Immigration courts are speeding up hearings for the tens of thousands of Central American children caught on the U.S. border after criticism that the backlogged system is letting immigrants stay in the country for years while waiting for their cases to be heard. There are 375,000 cases before the immigration courts, and many immigrants wait months or years for a hearing. Instead of bumping children to the back of that long line, the courts are now giving each child an initial court hearing within three weeks, according to the Justice Department's Executive Office for Immigration Review. A spokeswoman for the courts didn't answer questions about how many children's hearings had been set under the new plan or which courts had scheduled additional hearings. The Daily Times has more.

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House Abandons Plan on Immigration Crisis

Short on votes, House Republicans abruptly abandoned a bill today to address the immigration crisis on the U.S.-Mexico border after last minute maneuvering failed to lock down conservative support. The developments were a disappointment for many House Republicans who were eager to produce a legislative solution to the situation on the border. Today marked Congress' final day of action ahead of a five-week summer recess. WSMV has more from the Associated Press.

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Veteran Attorneys Form Immigration Practice

Nashville-based immigration attorneys Milen Saev and Rose Hernandez have announced the opening of Saev Hernandez Immigration Practice PLLC, the Nashville Post reports. The two partners, who previously practiced immigration law at Rose Immigration Law Firm, focus on employment-based, family-based and humanitarian immigration law.

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House to Vote on Scaled Down Border Response

House Republicans unveiled a scaled down bill Tuesday to address the immigration crisis on the U.S.-Mexico border by sending in National Guard troops and speeding migrant youths back home, the Associated Press reports. The bill would cost $659 million through the final two months of this fiscal year, less than the $3.7 billion requested by President Barack Obama. The measure also includes policy changes that would allow unaccompanied youths who have been arriving at the U.S. border to be sent back home without judicial hearings. House leaders predicted the bill would be on the floor on Thursday. If it does pass the House, the bill is certain to be rejected by the Democratic-run Senate, which was set to take a procedural vote on its own border package Wednesday. WRCB TV has the AP story.

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Immigrant Advocates ‘Baffled’ by Haslam Letter

Immigrant advocates say they are baffled by a letter that Gov. Bill Haslam sent to President Barack Obama saying his administration should have been informed about the placement of 760 unaccompanied immigrant children in Tennessee. According to the Tennessee Immigrant and Refugee Rights Coalition, unaccompanied minors have been placed in households with approved “sponsors” — typically their own families and relatives — for years. “They’re not getting dropped off. They’re getting placed with their mom, dad, aunt or uncle,” says a spokesperson for the group. The Tennessean has more on the story.

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Sheriff’s Office Responsible for ICE Checks

A story in yesterday’s issue of TBA Today indicated that metro Nashville officers are responsible for checking arrestees’ immigration records under the Secure Communities program. Instead, it is the Davidson County Sheriff’s Department that is participating in the federal program and is responsible for conducting the checks.

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Nashville Keeps Revised ICE Program for Now

Two years ago, Nashville replaced the 287(g) program with a nationwide effort called Secure Communities. Recently, other cities that had signed up for the program have cast it aside, saying it is too expensive, targets minor offenders and exposes local governments to Fourth Amendment violation lawsuits. Advocates for the immigrant community say Nashville should stop participating as well. But for now that seems unlikely, reports the Tennessean. Mayor Karl Dean says the sheriff's department has not reported any problems with the program, which allows the department to check an arrestee’s immigration status, hold him for 48 hours and arrange for Immigration and Customs Enforcement (ICE) deportation if justified.

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