Bustos Law Firm

President Obama’s New Immigration Executive Order – Its Terms and Injunction Against It

In Uncategorized on February 24, 2015 at 11:31 AM

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President Obama recently announced that he will take executive action to shield millions of illegal immigrants from deportation. While President Obama’s executive order will not grant illegal immigrants legal permanent residence (green cards) or citizenship, as only Congress can make that change with legislation, it may prevent up to 5 million immigrants from being deported.

Under this executive order, eligible immigrants will have the opportunity to request temporary relief from deportation if they file an application, and pass criminal and national security background checks and pay a fee. They will also be eligible for work authorization, and must also begin paying taxes.

Here are the some of the most important changes to the nation’s immigration system through this executive order that you need to be aware of.

1. It Removes the Age Cap for “Dreamers.”

Deferred Action for Childhood Arrivals (DACA), the group informally known as “Dreamers,” will be expanded under President Obama’s new executive order. This is the program that allows individuals who meet certain requirements to be deferred from deportation and allowed to work and travel in the U.S.

The current DACA rules require someone to be under the age of 31 on June 5, 2012. Also, eligability under the current DACA program is limited only to those individuals born after June 15, 1981. However, under the new executive order, this birthdate limitation has been lifted, and now anybody who was brought to the U.S. before the age of 16 will be able to apply for DACA as long as they meet the other requirements. The physical presence date has also been advanced to January 1, 2010, and applicants can now qualify for DACA if they were in the U.S. by that date, instead of June 15, 2007, under the current DACA rules.

DACA is also being expanded to three year increments. This change will apply to all first-time applications, as well as all applications for renewal, effective November 24, 2014. Work permits will be valid for three years now as well. USCIS is also considering extending previously issued two-year work permit renewals for the new three year period; however no decision has been made on this yet.

USCIS is advising that they expect these changes to take effect in late February of 2015.

2. It Shields Immigrants’ Parents from Deportation.

One of the biggest changes that will be made by the President’s executive order is the creation of a similar deferred action program for illegal immigrant parents of citizens or green-card holders. This protection will be available regardless of the age of the child. The Deferred Action for Parental Accountability (DAPA) will allow eligible parents to avoid deportation if they have been present in the U.S. since January 1, 2010, and have five years of total presence in the U.S.

Applicants must also not have a lawful immigration status on November 20, 2014, must have been present in the U.S. on November 20, 2014, and at the time of making the request for deferred action. Applicants will be subject to background checks and must not be in an enforcement priority category. Like DACA, deferred action will be granted for a period of three years. DAPA applications should start being accepted in late May of 2015.

Also, if someone is arrested by ICE, CBP or USCIS, they are to be identified as potentially eligible for DAPA, and officers are to seek administrative closure or termination of the case. DHS will review cases currently in removal proceedings to see who might be eligible for relief and those cases will be closed. The estimated population benefit will be 4.4 million under this new program.

3. Waivers.

In January of 2013, the U.S. Department of Homeland Security (DHS) published a regulation setting up a process to allow some people to file I-601A waivers for unlawful presence of the three and ten year overstay/unlawful status bars before leaving the U.S. and potentially facing a 3 or 10 year bar on returning to the U.S. The current rule only applies to spouses and children of U.S. citizens. However, the rule will now be extended to cover all statutorily eligible classes of relatives for whom an immigrant visa is immediately available, including spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.

It’s important to remember that USCIS is advising that these changes will not take effect until new guidelines and regulations are issued, and it has not provided a timeline for when these new guidelines and regulation are to be issued.

4. Recent Border Crossers will be a Priority for Deportation.

You must have been in the United States for at least five years to qualify for any of these new programs. These executive actions will not benefit immigrants who recently crossed the border, who may cross the border in the future, or who help those who cross in the future. It’s intended to only benefit immigrants who have been living in the United States for many years. By refocusing on border security, the President’s actions have increased the chances that anyone attempting to cross the border illegally now will be caught and then sent back to their home countries.

5. Enforcement Priorities.

Both the DACA and DAPA initiatives may not be available to those who have committed felonies or who have significant misdemeanors (such as DUIs or convictions for domestic violence) on their criminal record. Those eligible for DAPA and DACA must pass a background check, and those who have felony or significant misdemeanors on their record may be deported.

6. You will not be Able to Apply for Several Months.

USCIS will not begin accepting applications until early to mid-2015, depending on the program. But while the government is not accepting applications now, if you believe you are eligible for one or more of the initiatives, you can prepare now by gathering documents that establish your identity, your relationship to a U.S. citizen or lawful permanent resident (if applying on that basis), and that establish you have continuously lived in the United States for at least five years.

Once again, according to U.S. Citizenship and Immigration Services (USCIS), the changes made by the President’s executive order will not go into effect at least until 2015. Specifically:

• DACA changes are projected to take effect in late February 2015;

• DAPA applications should start being accepted in late May 2015; and

• USCIS is advising that the changes on I-601A waivers for unlawful presence will not take effect until new guidelines and regulations are issued, however it has not provided a timeline for when these new guidelines and regulation are to be issued.

7. Fraud.

As with other immigration requests, knowingly misrepresenting or failing to disclose facts will subject applicants to potential criminal prosecution or removal from the United States, so it is critical to provide truthful and accurate information and documentation. USCIS will carefully review each case and if you commit immigration fraud, you will not qualify for any benefits under the new executive order.

8. Be Aware of Scammers.

Once again, these changes have not yet been implemented, so beware of scammers offering to help submit these applications now. Instead, speak to a legitimate immigration attorney about what you can do while waiting for President Obama’s executive immigration order to take effect

9. Stay Informed.

Make sure you remain informed and know when the application process starts. As always, http://www.uscis.gov will be the authoritative source of information about eligibility and you can subscribe to get updates at http://www.uscis.gov/immigrationaction.

10. Legal Challenges to the Executive Order.

Members of Congress and 26 states, including Texas, have challenged President Obama’s executive order, claiming that his actions violate his constitutional duty to faithfully execute the current laws of the United States, and laws previously passed by Congress and prior Presidents, regarding immigration authority. In essence, they argue that President Obama does not have the legal authority to allow illegal immigrants the right to a work permit as only Congress can make that change in the law. They also argue that President Obama should not attempt to confer benefits upon immigration law breakers, and that he should actively enforce immigration law by deporting illegal immigrants eligible for deportation.

The Executive Order was successfully challenged in the United States District Court for the Southern District of Texas, and Judge Andrew Hanen in Texas v. United States issued an injunction against implementation of the Executive Order on February 16, 2015. The Obama Administration plans on appealing the injunction to the Fifth Circuit Court of Appeals. If that court affirms, it is easy to see how the Supreme Court may soon review the case.

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