Impact of Executive Order on Immigration

[gten20]

http://www.dhs.gov/sites/default/fil...ss_actions.pdf

Gurus, Section A talks about visa wastage since 1990. Does this mean recapture is still on the table?

[gten20]

The details
http://www.dhs.gov/immigration-action
http://www.uscis.gov/immigrationaction

[YTeleven]

I could only see the following references related to I-140 approval cases (need more clarity on these if these are really related to I-140 Approval cases):

From white house site: http://www.whitehouse.gov//the-press...ecutive-action
Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses.
Under the current system, employees with approved LPR applications often wait many years for their visa to become available.
DHS will make regulatory changes to allow these workers to move or change jobs more easily.


From DHS site: http://www.dhs.gov/sites/default/fil...ss_actions.pdf page 2 last paragraph :
Third, I direct that
USCIS carefully consider other regulatory or policy changes to better assist and provide
stability to the beneficiaries of approved employment-based immigrant visa petitions.
Specifically, USCIS should consider amending its regulations to ensure that approved,
long-standing visa petitions remain valid in certain cases where they seek to change jobs
or employers.

From USCIS site: http://www.uscis.gov/immigrationaction#4
Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.

[qesehmk]

A quick look at these three links and here is the observations:

http://www.dhs.gov/sites/default/fil...ss_actions.pdf
http://www.dhs.gov/immigration-action
http://www.uscis.gov/immigrationaction

Overall impression: Obama hasn't told USCIS what to do specifically. Rather he has issued guidance and objectives. The only place that is tangible is EAD for spouses when GC is filed. That looks like quite clear.

Most importantly from backlogged candidates' perspective there are 2 key things:
A) More visas (effectively)
B) Ability to file 485 without waiting for dates being current.

While there is no clear guidance on either following 3 things indicate at both of them.

DHS site says this - "because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions."

Flexibility means ability to file 485, change jobs, travel etc etc. So it should happen sooner or later. I think backlogged folks should count on it.

The memo says - "I direct that USCIS carefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. "

This is same thing as what DHS is saying above.


USCIS says it will

• Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.

This is interesting. It could mean anything. e.g.
A) start counting dependents to FB
and / or
B) implement quarterly spillover
and / or
C) capture all unused visas from 19XX onwards and allocate them to the backlog.

I have no clue really. But since USCIS is also commiting to make regulatory changes (i.e. interpreting the laws in terms of how USCIS functions) I believe they have been asked to do what they think they already have sufficient authorization for.

We will know over time.

[krishn]

thanks that helps the backlogged with ead to hold on to hope.

[YTeleven]

I could only see the following references related to I-140 approval cases (need more clarity on these if these are really related to I-140 Approval cases):

From white house site: http://www.whitehouse.gov//the-press...ecutive-action
Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses.
Under the current system, employees with approved LPR applications often wait many years for their visa to become available.
DHS will make regulatory changes to allow these workers to move or change jobs more easily.


From DHS site: http://www.dhs.gov/sites/default/fil...ss_actions.pdf page 2 last paragraph :
Third, I direct that
USCIS carefully consider other regulatory or policy changes to better assist and provide
stability to the beneficiaries of approved employment-based immigrant visa petitions.
Specifically, USCIS should consider amending its regulations to ensure that approved,
long-standing visa petitions remain valid in certain cases where they seek to change jobs
or employers.

From USCIS site: http://www.uscis.gov/immigrationaction#4
Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.

These instructions are so vague we can only understand what benefits we have once USCIS formulates the proposed rule.
Here is one interpretation from one attorney's blog: http://austinferguson.blogspot.com/2...-benefits.html

[Jonty Rhodes]

The language that has been used in the outline of memo is very vague and non-specific. President has requested DHS and USCIS to issue guidelines and make regulatory changes to implement the broad policies that have been mentioned.

This simply means that President has not issued any specific requirement to be met by USCIS/DHS. If he did, then at least we don't know about it. Now, USCIS and DHS will have to issue guidelines and make regulatory policy changes.

How long will it take? We don't know but minimum 6 months at least. However, I have a feeling that this is going to take longer than that just like H4EAD rule where USCIS opens it for comment for general public for some time after issuing an interim rule and then 3-6 months after, issue a final policy change.

I wish President would have been more specific when it came to legal immigration however on the other note, it could work well for us if USCIS/DHS decides to interpret law in a certain way and make regulatory changes, i.e. recapture or not counting dependents under EB quota.

I think the President deliberately decided to remain vague and non-specific with legal immigration changes so as to not fight on multiple fronts and to lessen the negative impact of EO as well or may be it was not in his authority to do recapture so he remained vague and left it to USCIS/DHS.

I just wish that USCIS/DHS do their work diligently and not keep delaying things in name of following proper procedure. Legals are hurting as badly as the illegals and they need some reprieve as well. Also, I wish to read full EO when it comes out with its minute details so we can get better idea.

[vyruss]

The language that has been used in the outline of memo is very vague and non-specific. President has requested DHS and USCIS to issue guidelines and make regulatory changes to implement the broad policies that have been mentioned.

.

They went for the low hanging fruit on the legal side of it. Opt extension and H4 EAD are the only improvements on the legal side and that too without strict language. I think they just sprinkled in a couple of legal issues with in the entire EO to make it look like they are thinking about the entire immigration picture. But the other issue is he is bound by the law and may be these were the only two issues he could tackle with an EO. But like you said some clarity would have been better. Especially on the portability, how is the language different from the current setting? It is still within the same field. There will still be a lot left to the judgement on this.

[kkruna]

One good thing is that USCIS works with its self-generated funds so it would be difficult to throttle through funding mechanism.

[gcq]

Here is what Ron Gotcher's newsletter said. I am assuming he might have gotten this info from AILA.

http://www.imminfo.com/News/2014/201...Action%20.html

Summary of the President's Executive Action

The following summary of the President's proposed executive action was obtained by the American Immigration Lawyer's Association earlier today:


1. Enforcement Priorities. Many of the existing memos on enforcement priorities and prosecutorial discretion will be replaced by a new memo that will name three enforcement priorities, which will be operational immediately:


1. Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and people apprehended on the border;
2. People convicted of serious or multiple misdemeanors, and very recent entrants (i.e., those who entered after 1/1/14)
3. Those who, after 1/1/14, failed to leave under a removal order or returned after removal.


The memo will contain “strong language” on using prosecutorial discretion appropriately. While most other memos on the subject will be rescinded, the victims of crime memo and the USCIS memo on issuance of NTAs will stand.


2. Border Security. The Secretary of DHS will announce a South Border “command and control” campaign to coordinate and better use resources at the border.


3. State and Local. Secure Communities will be discontinued and replaced by a Priority Enforcement Program (PEP). What it means that Secure Communities will be discontinued is unclear. Unclear if they will stop fingerprinting people and unplug the technology and interoperability of the federal and local databases. Detainers will be discontinued for all except national security cases. Instead of detainers, there will be a request for notification when a law enforcement entity is about to release a convicted criminal.


4. Nothing on family detention will be included in this package.


5. No changes to Operation Streamline which targets immigration entry and reentry for federal prosecution.


6. Two deferred action initiatives that combined are estimated to benefit 4.4 million:


a. Deferred Action for Parents (DAP). Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since 1/1/10, and who pass background checks and pay taxes, will be eligible to apply for deferred action, which will be granted for a 3-year period. The plan is to stand this up within 180 days (for applications to be accepted). Note that parents of DACA recipients are not eligible.
b. Expansion of DACA. DACA will be revised to get rid of the age cap, and to change the date that continuous presence must have started to 1/1/10. It also will be granted for 3 years (including those with pending renewal applications). Ready in 90 days.


7. Pending Proceedings. There will be a review of cases currently under proceedings to see who is prima facie eligible for the relief stated in this program, and those cases will be closed.


8. Immigration Court Reforms. There will be a package of immigration court reforms that will include qualification of accredited representatives and ineffective assistance of counsel issues.


9. U/T Visas. Three more types of offenses will be added to the list of offenses for which DOL can certify for U status. No specifics were available regarding which offenses will be added. T visa
eligibility may also come into play with respect to DOL.


10. Worksite Enforcement. DOL will coordinate with other agencies regarding worksite enforcement activities.


11. Foreign Entrepreneurs. Certain investors will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation (no further details at this time).


This will be done by regulation. Also, entrepreneurs, researchers, inventors, and founders will be eligible for national interest waivers. This will be implemented through policy guidance.


12. Timing of Filing for Adjustment of Status. The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.


13. AC21. “Same or similar” will be clarified.


14. L-1B. The guidance will be released.15. H-4 EADs. The regulation will be finalized, probably in December or January.


16. OPT. The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened for this period. Other changes, such as
allowing STEM OPT post-master’s degree where only the first degree is in a STEM field is under consideration. This will be done by regulation.


17. PERM. A full rulemaking will be undertaken to modernize the PERM program.


18. I-601a Waivers. The provisional waiver will be expanded to include spouses and children of LPRs. The definition of extreme hardship will be expanded and clarified.


19. Advance Parole. There will be a new advance parole memo that will address the issues raised in Matter of Arrabally-Yerrabelly and make clear that CBP should honor the advance paroles issued by USCIS.


20. Parole in Place. PIP will be expanded to include families of individuals trying to enlist in the armed forces.


21. Visa Modernization. There will be a Presidential Memorandum directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law. Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.


22. Integration. A second Presidential Memorandum will set up a Task Force on New Americans.

[Spectator]

Just to give some historical perspective to this subject.

The idea of pre-registration for AOS has been around as a potential regulatory change since at least 2009.

As part of the proposed regulation, USCIS also sought to end concurrent filing of I-140/I-485 and require an approved I-140 to do so.

See http://www.reginfo.gov/public/do/eAg...&RIN=1615-AB82

The latest version I could find was from Fall 2010 (I haven't looked that hard).

DHS/USCIS RIN: 1615-AB82 Publication ID: Fall 2010
Title: Preference Alien Process Registration for Adjustment of Status Applicants

Abstract: This proposed rule would amend the Department of Homeland Security (DHS) regulations governing how U.S. Citizenship and Immigration Services (USCIS) would accept and process an Application to Register Permanent Residence or Adjust Status, Form I-485. This proposed rule would discontinue the concurrent filing process for employment-based adjustment of status applicants. In addition, it would require that an alien seeking to immigrate based upon a classification that is subject to numerical limitations, must be the beneficiary of an approved immigrant petition prior to proceeding through a revised adjustment of status process. This proposed rule is intended to streamline the overall adjustment of status process, as well as mitigate visa retrogression through improved estimation of immigrant visa availability.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Completed Actions
Major: No Unfunded Mandates: No
CFR Citation: 8 CFR 103; 8 CFR 209; 8 CFR 245; 8 CFR 274a (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 8 USC 1255(a)
Legal Deadline: None
Timetable:
Action Date FR Cite
Withdrawn 08/03/2010

In a previous incarnation from Spring 2009, USCIS also sought to amend the PD from one based on LC submission.

DHS/USCIS RIN: 1615-AB82 Publication ID: Spring 2009
Title: ●Preference Alien Registration of intention to apply for adjustment of status; Pre-filing of certain applications

Abstract: This proposed rule would amend the Department of Homeland Security (DHS) regulations governing how the U.S. Citizenship and Immigration Services (USCIS) would accept and process an Application to Register Permanent Residence or Adjust Status, Form I-485. This proposed rule would discontinue the concurrent filing process for employment-based adjustment of status applicants. Instead, it would require that an alien worker be the beneficiary of an approved immigrant petition prior to filing an adjustment of status application. Further, this proposed rule would remove an alien’s reliance on the Department of State’s (DOS) Visa Bulletin to determine visa availability and therefore eligibility to file for adjustment of status. Instead, the rule proposes that USCIS utilize a registration process for intending adjustment of status applicants by requiring an applicant to file a registration packet after the granting of an immigrant petition and prior to visa availability, based on the use of “qualifying dates” established by DOS. This proposed rule is intended to streamline adjustment application processing by utilizing a two-step process in which registration packets can be pre-screened for documentary evidence, security checks can be initiated and completed, and pending visa demand can be adequately conveyed to DOS. The DOS will then adjust its Visa Bulletin accordingly and applicants may then proceed forward with filing their I-485s based on visa availability as reflected in the monthly Visa Bulletin. This process will result in a steady workflow, will mitigate visa retrogression, and make applications generally decision- ready shortly after time of visa availability. This proposed rule will also allow USCIS to correct a discrepant regulatory reference that defined an employment-based priority date based on a Department of Labor-issued labor certification incorrectly.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Undetermined Unfunded Mandates: No
CFR Citation: 8 CFR 103; 8 CFR 209; 8 CFR 245; 8 CFR 274a (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 8 U.S.C. 1255(a)
Legal Deadline: None
Timetable:
Action Date FR Cite
NPRM 12/00/2009

Fortunately, that seemed to disappear by the Fall 2009 version and has not appeared since to my knowledge.

I'm a little surprised this wasn't mentioned as a specific action in Jeh Johnson's Memo.

[kkruna]

While there is timeline for H4 EAD (Dec/Jan), there is none for "regulation" in respect of AOS. This could imply that final regulation in this respect is not likely by Dec/Jan at least. They could save some labor by bringing the H4 EAD and AOS together.

[skpanda]

While there is timeline for H4 EAD (Dec/Jan), there is none for "regulation" in respect of AOS. This could imply that final regulation in this respect is not likely by Dec/Jan at least. They could save some labor by bringing the H4 EAD and AOS together.

Where is the timeline for H4/EAD? Please provide reference. Thx

[skpanda]

With the huge volume of work things wont happen quick. See below. To me it means, that people who apply will get their EADs anywhere between 6 to 12 months. Some people may get lucky but most will not.

http://www.uscis.gov/immigrationaction


Q4: How long will applicants have to wait for a decision on their application?

A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.

[kkruna]

Where is the timeline for H4/EAD? Please provide reference. Thx

I was referring to Ron's update above by gcq.

[qesehmk]

Spec

I strongly suspected this .. I think even with this backlogged folks would welcome pre-registration.

As part of the proposed regulation, USCIS also sought to end concurrent filing of I-140/I-485 and require an approved I-140 to do so.

See http://www.reginfo.gov/public/do/eAg...&RIN=1615-AB82

The latest version I could find was from Fall 2010 (I haven't looked that hard).

[geniusmag]

"19. Advance Parole. There will be a new advance parole memo that will address the issues raised in Matter of Arrabally-Yerrabelly and make clear that CBP should honor the advance paroles issued by USCIS."

What does the above mean, Does CBP not already honor the Advance parole document issued by USCIS to those who are waiting for a visa number ?
I thought there were no issues with people traveling in and out of the country as long as they have a valid AP card.

[qesehmk]

"19. Advance Parole. There will be a new advance parole memo that will address the issues raised in Matter of Arrabally-Yerrabelly and make clear that CBP should honor the advance paroles issued by USCIS."

What does the above mean, Does CBP not already honor the Advance parole document issued by USCIS to those who are waiting for a visa number ?
I thought there were no issues with people traveling in and out of the country as long as they have a valid AP card.

CBP officers have significant powers. They can refuse entry for any reason or no reason actually. There is no appeal for this. It is important to understand this. So with or without this memo - this fact will always be true.

Having said that my understand of the above part from the memo is that it is asking CBP officers to not hold any previous visa violations against the person when the person is trying to enter US on an Advanced Parole.

[gcq]

"19. Advance Parole. There will be a new advance parole memo that will address the issues raised in Matter of Arrabally-Yerrabelly and make clear that CBP should honor the advance paroles issued by USCIS."

What does the above mean, Does CBP not already honor the Advance parole document issued by USCIS to those who are waiting for a visa number ?
I thought there were no issues with people traveling in and out of the country as long as they have a valid AP card.

This is that case http://www.justice.gov/eoir/vll/intd...28final%29.pdf

I concur with Q:
basically what that EO means is, as Advance Parole is kind a permission for the individual to return to US by USCIS, CBP should not deny entry to that individual as USCIS has already taken into consideration their "unlawful presence" in this case or any other issue in general before approving AP.

IMO this should be the general standard for all applications. CBP or consulate denying a case based on the factors which USCIS has already considered is meaningless. USCIS is the proper authority to take such decisions as they have gone through the case thoroughly. CBP or consulate has only minimal information regarding many cases.

[tomhagen]

http://www.dhs.gov/sites/default/fil...ss_actions.pdf

I too can't track down. No mention of filing I-485 as soon as I-140 is approved. Is there any other document?

Again all the instructions to DHS/USCIS require rule making to fulfill the recommendations of EO, none for immediate effect for sure.

This is the first clear note I have seen since yesterday night.

http://www.whitehouse.gov/share/info...gration-system

Please scroll down and see the legal section. It is saying
Expanding work authorization for high-skilled workers who are in line for green card

[nbk1976]

Why do you think it would take an extra hour to process your admission when you enter with AP? The CBP was running checks to see if you broke any laws before. I guess now they are saying CBP should simply honor the AP travel card. That might speed up the whole reentry process, which is great.

[4WatItsWorth]

Spec

I strongly suspected this .. I think even with this backlogged folks would welcome pre-registration.

When, let's say, the Pre-registration rule comes along, will not that make the "EAD for H4 spouses" redundant? I do not understand the point of having the latter if / when the former shall come along. Am I missing something here or is it WH's attempt to show that the EO is more comprehensive than how much is being done for people living / working legally?

That said, I still think that pre-registration is going to be a big relief for people from backlogged categories.

[PD2008AUG25]

When, let's say, the Pre-registration rule comes along, will not that make the "EAD for H4 spouses" redundant? I do not understand the point of having the latter if / when the former shall come along. Am I missing something here or is it WH's attempt to show that the EO is more comprehensive than how much is being done for people living / working legally?

That said, I still think that pre-registration is going to be a big relief for people from backlogged categories.

Could it be that H4 EAD rule will be applicable to anyone whose spouse has I-140 approved from *any* employer (like 3-year H1B extension)? Pre-registration might require i140 from current employer as it is pre-cursor to I-485?

[YTeleven]

Thanks Spec for the link to USCIS proposed rules related to I-140 approval cases.

Here is one more attorney's interpretation for President's EO with regards to I-140 approval cases: http://www.rnlawgroup.com/news/443-e...d#.VG-W-k10yUl
the executive order is expected to allow those with an approved I-140 to file an application for adjustment of status (I-485) even if the priority date is not current. Note that this does not mean that the I-485 can be approved without a current priority date. It does, however allow the employment-based beneficiary to obtain an Employment Authorization Document (EAD) and the same for eligible dependents. Another benefit to this provision is increased portability. Once an I-485 has been pending for 180 days, AC-21 allows an applicant to change employers in certain circumstances. This provision is not currently available to those without a pending I-485. This may also eliminate the need for many to file H-1B transfers in the event of a change of employer. This part of the executive order is expected to impact about 400,000 people

[Spectator]

When, let's say, the Pre-registration rule comes along, will not that make the "EAD for H4 spouses" redundant? I do not understand the point of having the latter if / when the former shall come along. Am I missing something here or is it WH's attempt to show that the EO is more comprehensive than how much is being done for people living / working legally?

That said, I still think that pre-registration is going to be a big relief for people from backlogged categories.

4WatItsWorth,

In many ways it does cover much of the same ground.

The H4-EAD rule also applies to those who have extended an H1B beyond 6 years due to a pending PERM of 365 days or more (if I remember correctly). That wouldn't be covered under any pre-registration rule.

I think more importantly, the H4-EAD rule is close to being implemented and H4 could start to benefit from it fairly soon.

The cynical (or perhaps realistic) part of me says it will be some time (maybe a year) before any pre-registration rule is finalized and comes into effect.

The USCIS page on EO gave timelines for DACA expansion and DAPA of 90 and 180 days. I'm not convinced much will happen with rule making until after those 180 days. As seen with the H4-EAD rule, it is a very long winded and cumbersome process even once it begins.