President Obama’s Executive Action:
Who Benefits? What are the Benefits? When Are the Benefits Available?
While some disagree whether it should be called an amnesty, or not, under President Obama’s recently signed executive order, various large groups of immigrants – both undocumented and documented, stand to benefit, including:
Approximately 4 million undocumented individuals may now be eligible to apply for “Deferred Action” status and a 3 year Employment Authorization Document (“EAD”). For those fighting removal proceedings, the Deferred Action status will effectively put an indefinite halt to such proceedings.
To qualify for the EAD and Deferred Action status, an applicant:
a) must have arrived in the U.S. on or before January 1, 2010 and resided in the U.S. continuously through November 20, 2014,
b) must have paid taxes on income earned,
c) must not have been convicted of any significant criminal offense,
d) is the parent of a U.S. citizen or lawful permanent resident and
e) must be without legal status on the date of the executive order, November 20, 2014.
For those fighting removal proceedings, even individuals who do not meet the above requirements, but have otherwise sympathetic life circumstances and do not fall within newly designated prosecutorial priorities, will nevertheless perhaps be able to appeal for closure of removal proceedings.
Importantly, even some individuals with criminal convictions that might possibly disqualify them for being covered under the above program, may still nevertheless seek consideration based on humanitarian factors.
Childhood Arrivals: With the new Obama program, the 2012 Executive Order initiating the Deferred Action for Childhood Arrivals (“DACA”) will be expanded. This is the initiative benefitting individuals arriving in the U.S. while under the age of 16, and allows for Deferred Action status and issuance of an EAD. Pursuant to the terms of the new Obama Executive Order, the date by which applicants must have arrived here (and prior to reaching 16) will be January 1, 2010. Applicants will have to demonstrate continuous residence from that date and up to the present. Further, the previous age cap of 31 has been completely done away with, and applicants can be older than 31 years at the time of their application.
It is expected that applications under this expanded DACA program will begin being accepted before March 2015.
Approximately 400,000 immigrants who are now in the U.S. and seeking permanent residence by way of their employment opportunity, will now be eligible to proceed to the final stage of resident processing – adjustment of status – prior to priority date availability, and thus far sooner than allowed for under previous law. Such a change will allow the worker to obtain a generalized Employment Authorization Document and avail of greater freedoms to change jobs while processing is under way. For qualified individuals with a requisite job offer, and in a position for which there is a shortage of U.S. workers, including for registered nurses and physical therapists, this new provision will bring a wealth of new opportunities for qualified foreign workers.
The Executive Order Provides For No Long Term Status: Importantly, a 3 year Employment Authorization Document (or “EAD”) and Deferred Action status does not provide for or lead to lawful permanent residence (green card). If formal legislation conferring a path to permanent resident status is not signed into law within the next 3 years, the applicant will need to file for renewal of this status.
Applications for the above benefits will begin to be accepted sometime in the coming 90 to 180 days, as the U.S. Department of Homeland Security establishes processing mechanisms and implementing regulations are issued.
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