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Davis Brown Immigration Law Blog

Iowa Immigration Law Blog: Possible Executive Action - How to prepare - November 17, 2014

The news is abuzz with speculation about executive action by President Obama in the coming days. Despite these “leaks” no one really knows whether action will be taken or what any plan may contain.

Based on proposals that have been in consideration for some time,  two changes that are likely to be included are (1) expansion of the deferred action program and (2) re-interpretation of the employment-based “green card” counts to effectively bring forward the current waiting line.

Expanded Deferred Action: in 2013, the “Deferred Action for Childhood Arrivals” or “DACA” allowed persons meeting certain criteria to register and apply for a work permit.  Speculation is that this program could be expanded to reach more people, but who will qualify will not be clear until the actual announcement is made.

If it is like the DACA program, the application will be simple, but documentation of eligibility will be necessary to apply, such as to prove when a person entered the U.S. or how long she has been here.  Records could include medical, school, payments or bills. We have no idea if the deferred action program will be expanded or who would be included.

Employment-based waiting line fix: The leaked plan talks about more visas for “high skill workers”.  What this means is not clear.  However, one possible action would be to change the way the employment-based waiting line is calculated.  It is within the Executive’s purview to interpret the current law, but not to create a completely new program.

For many years the Immigration Service did not utilize all the employment-based visas available (140,000 per year).  Many have urged the President to order that these unused visas be placed back into the allocation of immigrant visas for use now. This would reduce the waiting line considerably.

Additionally, dependents are currently counted toward the 140,000 allocation.  Many argue that a reasonable reading of the law would exempt dependents from being counted toward the total number of visas allotted under this system.

If one or both of these interpretations were changed, it would free up thousands of immigrant visas for those in the waiting line. We have no idea whether this will happen and how many additional visas will be available.

However, if this action were taken, people waiting to file “adjustment of status” would be able to do so if their priority date became “current”.  To file adjustment of status, documents such as birth, marriage and divorce certificates, passport copies, I-94s would be required, plus information about past employers and residences.

We are watching developments closely and will let you know as soon as the actual facts are clear.

Davis Brown Immigration Department