President Obama announced tonight in very broad terms that he would expand “deferred action” to millions of undocumented immigrants beyond the DACA program of 2012 (Deferred Action for Childhood Arrivals). The new program, to begin in 2015, will benefit the following groups of people who choose to step forward out of the shadows for a less than perfect immigration status. Deferred action is NOT a green card/permanent residence, a visa, citizenship, amnesty nor legalization. It just defers or delays potential deportation for two years but does offer the opportunity to work during those three years.

Eligible Groups for Deferred Action:

1. Parents of US citizen or lawful permanent resident children on the date of the announcement (November 20, 2014). They cannot be “enforcement priorities” (i.e., certain criminals and others). The parent must have been continuously in the US since January 1, 2010.

2. Individuals who arrived in the US before turning 16 years old and before January 1, 2010, regardless of how old they are today. This is a big change from the 2012 DACA program that required individuals to have entered the before turning 16, resided continuously in the US since June 15, 2007, were in the US on June 15, 2012, and were under 31 on that date. The DACA group also had to be in school, working toward a GED or have graduated from high school. It’s unclear whether there will be an education requirement for this new expanded group.

For both groups above, applicants will have to pass criminal and national security background checks, pay their taxes, and pay a fee.

Finally, the program won’t start until well into 2015 as details have to be worked out and USCIS has to staff up and be trained. So, there is nothing to apply for now except the existing DACA program. Keep in mind, if the House of Representatives ever has the guts and the will to finalize and vote on an immigration bill, this program may not come to fruition if Congress enacts a bill covering the same group before the President’s program kicks in. Stay tuned for further news on implementation.

Provisional Waiver Expansion

Provisional or stateside waivers are specific applications required in the green card process for those individuals who have a way to legally immigrate but must do so at a US consulate abroad because they are out of status in the USA. The waivers are needed to overcome a ground of inadmissibility due to a prior period of unlawful presence making the applicant subject to the three or 10 year bars when they leave the USA to go to the consulate. Applicants must show extreme hardship to a US citizen or permanent resident spouse or parent. Waivers are needed for other grounds of inadmissibility as well, but for other grounds, the individual must apply for the waiver only after the consular interview. This means being separated from family for six months or longer while waiting for the waiver to be adjudicated.

Provisional waivers to waive ONLY the unlawful presence bar have until now only been available to spouses and minor children under 21 of US citizens seeking to immigrate. They are filed in the US after approval of the visa petition but before going to the US consulate abroad. This allows families to stay together in the USA while the waiver is being decided. Consular appointments and follow up abroad is much shorter, minimizing the length of family separation.

President Obama’s announcement tonight expands the group of people who can seek provisional waivers to spouses and minor children of permanent residents, and adult sons and daughters of US citizen parents.

Who Stands to Lose Under Obama’s Announcement?

Anyone coming to the USA illegally or overstaying a visa since January 1, 2014 will be considered to be a high priority removable immigrant. It’s less clear what the fate of those coming to the USA after January 2010 and before January 2, 2014 will be, but they will not benefit at all from deferred action except in some case specific limited circumstances, given that deferred action is available for a humanitarian or public interest reason.

Parents of youth who already received DACA are not covered under this announcement unless they fall under the categories above.

Beware of Scams
These programs are not available NOW except for the existing DACA program. Potential applicants should wait until the Department of Homeland Security announces the program is ready.

Beware of who is eligible to help you! The only people who may help select and complete forms and file cases on your behalf are the following:
1. US licensed attorneys in good standing (check with the state bar of any state)
2. Board of Immigration Appeals accredited organizations and representatives. See EOIR Roster and cross check with disciplinary list.
3. Law students working under supervision of a professor or licensed attorney 4. “Reputable individuals” with whom you have a pre-existing relationship and whose help you request (family, friend, clergy), who does not charge a fee, and who gets permission from USCIS.
5. Certain accredited officials (e.g., consular officer)

If you need free help, see http://www.justice.gov/eoir/probono/states.htm. See “Avoid Scams” which includes How to Find Legal Help.

If you can afford an attorney, besides this firm, you can find immigration attorneys who belong to the American Immigration Lawyers Association at www.ailalawyer.com.

For more information
See this Infographic from the White House.

See this fact sheet from the White House.

Check back here at Seattleimmigrationlawyerblog for more information as details as emerge. Also, check our other blog at www.bswasserlaw.com/blog for implementation and substantive law related matters as this program progresses in the next few months.