Waiting on implementation of Obama’s executive action immigration reform

Last week President Obama announced his plans to take executive action related to the enforcement of immigration laws. Key in those announcements were:

  • Prioritizing the deportation of ‘felons over families’
  • Issuance of employment authorization to select individuals
  • Establishing a framework that would allow certain undocumented immigrants to remain in US without fear of deportation if they pass a criminal background check and pay taxes

Core Changes

The United States and Immigration Services website details the initiatives as follows:

  • Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years
  • Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks
  • Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
  • Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs
  • Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee

Waiting Game

Currently, none of these proposals have been implemented. Based on current chatter, it appears that it will be a few months, likely after the new year, before any of these changes are implemented.

So, at this point we cannot provide specific advice or assist any clients in filings related to the executive action on immigration. However, there are preparatory steps individuals can take to prepare.

Documents you should have ready for upcoming executive action on immigration

While the specifics have yet to be detailed, it is likely that certain documentation will be useful in taking advantage of the forthcoming executive action.

Individuals interested in taking advantage of the benefits of the executive action should gather documents demonstrating identity, any relationships with U.S. citizens and lawful residents and evidence demonstrating a continuous residence in the united states for 5 years or more. Having these documents ready prior to contacting an attorney to assist you further will likely decrease the amount of time it takes to process your case.

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Obama to lay out framework for executive based immigration reform Thursday 11/20/2014 at 8:00pm EST

President Obama is scheduled to announce his framework for immigration reform tonight at 8:00pm EST 5:00pm pacific.

The plan allegedly will shield around 5 million currently present illegal aliens from deportation. There may also be reforms related to acquiring work permits and other benefits.

We will provide a detailed analysis of the executive action after its announcement.

We will also monitor any legal challenges this executive based action may face, as republicans have made clear they plan to oppose any action. This also could lead to a showdown financially, if the republican controlled legislative branch refuses to continue funding the government until comprehensive legislation is passed, or until President Obama repeals his executive action. The federal government will run out of funding on December 11th and may be able to continue functioning with some accounting antics for a short time thereafter. So mid-December may be a time of intense political wranglings.

As always, our goal is to provide the most competent and cost-effective advice to our clients as possible. Whatever framework is established, we will try to leverage it as much as possible to meet our clients’ needs.

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Typical Pathways to Citizenship

Currently there are 4 typical ways an individual can get U.S. citizenship.  They are: 1) Individuals who apply and have had a green card for more than 5 years; 2) Green card holders who marry U.S. citizens; 3) Green card holders in the military and their family; derivative Citizenship through parents.

Recently there has been talk about a comprehensive immigration reform bill. If that bill passes it will likely contain some type of amnesty clause or a framework to allow currently present non-status individuals a pathway to residency if not citizenship. I will write further on that topic, and update this section, when the framework is known and concrete.

Below are the typical pathways to United States Citizenship

If you have been a green card holder (permanent resident) for at least 5 years, the general requirements are as follows:

  • Be 18 or older at the time of filing
  • Be a green card holder for at least 5 years immediately preceding the date of filing the Form N-400, Application for Naturalization
  • Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the application
  • Have continuous residence in the United States as a green card holder for at least 5 years immediately preceding the date of filing the application
  • Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application
  • Reside continuously within the United States from the date of application for naturalization up to the time of naturalization
  • Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (civics).
  • Be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during all relevant periods under the law

For green card holders that marry U.S. Citizens, the general requirements are:

  • Be 18 or older
  • Be a permanent resident (green card holder) for at least 3 years immediately preceding the date of filing Form N-400, Application for Naturalization
  • Have been living in marital union with the U.S. citizen spouse, who has been a U.S. citizen during all of such period, during the 3 years immediately preceding the date of filing the application and up until examination on the application
  • Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of  filing the application
  • Have continuous residence in the United States as a lawful permanent resident for at least 3 years immediately preceding the date of filing the application
  • Reside continuously within the United States from the date of application for naturalization until the time of naturalization
  • Be physically present in the United States for at least 18 months out of the 3 years immediately preceding the date of filing the application
  • Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (also known as civics)
  • Be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during  all relevant periods under the law

For individuals who have served in the military during peacetime the general requirements are (note there are different requirements in peacetime and during hostilities, also not the requirements vary for family members:

  • Be age 18 or older
  • Have served honorably in the U.S. armed forces for at least 1 year and, if separated from the U.S. armed forces, have been separated honorably
  • Be a permanent resident at the time of examination on the naturalization application
  • Be able to read, write, and speak basic English
  • Have a knowledge of U.S. history and government (civics)
  • Have been a person of good moral character during all relevant periods under the law
  • Have an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the U.S. during all relevant periods under the law
  • Have continuously resided in the United States for at least five years and have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application, UNLESS the applicant has filed an application while still in the service or within 6 months of separation.  In the latter case, the applicant is not required to meet these residence and physical presence requirements.

The rules for derivative citizenship through parents are complicated and vary depending on a variety of factors.

 

As always, consult with a licensed attorney prior to taking any action.

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