TBA Law Blog

Posted by: Bruce Buchanan on Nov 25, 2014

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 ilw.com, located at www.EmployerImmigration.com, and is a contributor to LawLogix’s I-9 and E-Verify Blog, located at http://www.lawlogix.com/blog and HR Professionals Magazine. Bruce may be reached at bbuchanan@visalaw.com or (615) 345-0266.