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The Immigration Accountability Executive Action (IAEA): Summary of Action Plan

It has been a busy day for immigration attorneys and Washington, DC.    As President Obama is getting ready to announce his executive action proposal, called Immigration Accountability Executive Action (IAEA), there are some reliable preliminary updates we can share with our readers.

Summary of Proposed Executive Action Steps

Deferred Action for Parents of USC and LPR.   Deferred action (similar to DACA) – can obtain work permit (3 years) and relief from removal.   Must be in the US for five years or more.  Also, must apply, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement.   Estimated population of this benefit is around 4.4 million.   Should be running in 180 days.

DACA Expanded.   The Deferred Action for Childhood Arrivals (DACA) program is being expanded.   Individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today.  Going forward, DACA relief will also be granted for three years.   Should be effective in 90 days.

H-4 Spouses EAD.   The rules announced in May to give work permits (EAD) to certain H-4 spouses (of H-1B holders who have an I-140 immigrant petition) are expected to move forward.

I-485 Pre-Registration/Easier Job Portability Prior I-485 Filing.   Changes are expected to make it easier for workers who are stuck waiting for an immigrant visa number to change their jobs.     The proposal is to allow approved I-140 beneficiaries to obtain I-485-like benefits (such as work permit, job portability) and allow them to change employers.     Estimated population is around 400,000.   This will be done via regulation which is subject to the (often time-consuming) regulation-making process.   The AC21 “same or similar job” language is expanded/clarified.

Entrepreneurs Qualify for NIW.   While this has already been a “guidance”, the plan is to expand immigration options for foreign entrepreneurs, researchers, inventors, and founders who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S.

STEM/OPT Program Expanded.   OPT eligibility and terms to be expanded but stronger ties between OPT students and their universities will be required.

PERM Labor Market to be “Modernized.” DOL will be tasked with “modernizing” the PERM labor certification system and its labor market test to ensure American workers are protected by the immigrant visa process.   Details are key but we do not have them yet.

Provisional Waiver Expanded to Spouses of LPR.   Provisional waiver from within the US is being expanded to include spouses of LPR (in addition to US citizens).

Parolees Will Have Expanded Protections for Travel.   It is expected that the rules will remove the inadmissibility trigger when traveling and entering on advance parole; which will help many parolees (DACA, IAEA and employment-based parolees).

What DID NOT Make it Into the Proposal

It is worth mentioning briefly which of the common points did not make it into the proposal.   Parents of DACA holders are not included.   Also, the proposal does not change the way the family derivative members are counted under the immigrant visa numbers.   As a result, the current backlogged wait system will continue (subject to some relief from the points above).    There are no changes to the H-1B  program.

Live Chat and Webinar on Immigration Accountability Executive Action

Please join us for two upcoming events to discuss the details of the program.

Live Chat:   Immediate Analysis and Reaction to Executive Action Proposal Thursday, 9 pm EST.

Immediately after President Obama’s speech this evening we will host hosted a live chat dedicated solely on the speech, the proposals contained therein and our immediate analysis of the impact on various groups of immigrants.    Sorry we missed you – but you can read the chat transcript.

Webinar:   SPECIAL EDITION on President Obama’s Executive Action Plan – Details and Analysis Friday, 1 pm EST.

On Friday, November 21, 2014 at 1 pm EST, after we have had a chance to go through the proposal in more detail, we will hold held a webinar presentation where we will provide provided a more detailed analysis of the executive action proposal and how it affects various groups of immigrant populations.     We should also be able to provide some kind of an overview of challenges to the proposed action and anticipated steps forward and timeline.    You can see the recorded webinar.

Conclusion

We will be providing much more over the next few days — this is obviously a somewhat quick and brief overview of the proposed components of the plan.    Please stay tuned over the next days as we will be active in providing updates and analysis.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.

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Executive Action on Immigration: Announcement and Analysis Live Chat and Webinar Sessions

There are a few people who are interested in immigration who are not aware of the upcoming announcement by President Obama on his plan for executive action on immigration.    At this time,  we have been receiving rumors, bits and pieces, provided off the record, by various sources in the government here in Washington, DC and we will not be analyzing the proposals until the official announcement is made:  President Obama is expected to make his announcement this evening, November 20, 2014, at 8 pm eastern time and we will be staging a number of events immediately after to analyze the proposal.

Live Chat:   Immediate Analysis and Reaction to Executive Action Proposal Thursday, 9 pm EST.

Immediately after President Obama’s speech this evening we will host a live chat dedicated solely on the speech, the proposals contained therein and our immediate analysis of the impact on various groups of immigrants.    Please join us for this chat immediately after the announcement at 9 pm EST.

Webinar:   SPECIAL EDITION on President Obama’s Executive Action Plan – Details and Analysis Friday, 1 pm EST.

Tomorrow, Friday, November 21, 2014 at 1 pm EST, after we have had a chance to go through the proposal in more detail, we will hold a webinar presentation where we will provide a more detailed analysis of the executive action proposal and how it affects various groups of immigrant populations.     We should also be able to provide some kind of an overview of challenges to the proposed action and anticipated steps forward and timeline.    There are limited seats for this webinar and it will sell out – please register now.

And yes, these events are FREE to anyone to register but there is limited space available.   We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.

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Guidance on I-9/Employment Verification for DACA Applicants

The U.S. Citizenship and Immigration Service (“USCIS”) has issued new guidance to employers regarding the employment verification and documentation process for employees with valid and pending Deferred Action for Childhood Arrival (“DACA”) applications.     According to recent USCIS figures, there have been approximately 420,000 DACA applications filed and as approvals are starting to be sent out, more and more employers are likely to face the task of documenting the I-9 and employment eligibility for DACA workers.

Background of DACA

On June 15, 2012, USCIS announced the Deferred Action for Childhood Arrivals process for certain individuals without current valid immigration status and who meet specific criteria.  The process allows those individuals to request consideration of deferred action (and work permit) for up to two (2) years, with the option of renewal.  Deferred Action gives the Department of Homeland Security the authority to postpone removal proceedings and is not considered a lawful immigration status.   A valid work authorization document is also issued to successful applicants.  The required criteria for DACA applicants are:

  • Must be under the age of 31 as of June 15, 2012;
  • Must have arrived in the United States before the age of 16;
  • Must have continuously resided in the United States from June 15, 2007 – June 15, 2012;
  • Must have entered the United States without inspection or have expired status as of June 15, 2012;
  • Must be in school, graduated, obtained a GED, or honorably discharged from the United States military force; and
  • Must not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, or pose a threat to national security or public safety.

USCIS Guidance for Companies Hiring or Employing DACA Employees

Approved DACA applicants are issued an Employment Authorization Document (“EAD”) cards by USCIS for up to two (2) years at a time.  Like all other employees, the DACA employee must complete and sign a Form I-9 within 3 days of hire.  For more information on employer responsibilities regarding Forms I-9, see our recent I-9 compliance article.   The employer is responsible for documenting the EAD and its validity dates on the Form I-9, under Section 2.  The employer should not request additional documentation to confirm DACA status, the EAD card is sufficient.

USCIS Guidance for DACA Employees Conflicts With General I-9 Requirements

The M-274 Handbook for Employers should be the ultimate resource for all Form I-9 related concerns.  While the USCIS DACA Guidance for Employers indicates that a new Form I-9 should be completed if an employee’s name, date of birth, signature, or social security number change, this directly conflicts with M-274 Handbook for Employers.  The M-274 Handbook for Employers advises that incorrect or outdated information on the Form I-9 simply be crossed out and updated on the same form.  USCIS’s own I-9 Central states the same.

Conclusion

Only in the case of major errors, such as full sections of the Form I-9 being left incomplete, should a new Form I-9 be completed.  Even then, the incorrect Form I-9 should be attached to the new form with an explanatory note detailing the errors and corrective steps taken.  Finally, the USCIS DACA Guidance also advises employers to submit a new e-Verify application, if the employer participates in the program for all employees, each time a new employment authorization documentation is provided.  This conflicts with the e-Verify program instructions to submit e-Verify only for newly hired employees.  While we applaud USCIS’s efforts to educate employers on completing Form I-9 and submitting e-Verify requests for potential DACA employees, their guidance should match the already existing I-9 and e-Verify rules and procedures.

How Can We Help

The Capitol Immigration Law Group is here to assist with pending DACA applications or questions regarding the DACA process or obtaining the associated EAD.  The Capitol Immigration Law Group can also provide various levels of I-9 compliance education, audits, and on-site employee training as well as training materials and guidance for performing regular audits and training.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

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