The Executive Orders on Immigration: What You Need to Know

An estimated five million lives may be impacted today when President Obama signs a series of comprehensive immigration-based executive orders into effect. As you will read below, these executive orders will create significant amendments to our current immigration system.

Regardless of one’s stance on these measures, it is important to understand how executive orders operate with regard to “checks and balances.” Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Congress can overturn any executive order by passing legislation that opposes the order. While the President can veto that bill, Congress can override that veto by a two-thirds majority vote to pass the bill. The Supreme Court can declare an executive order unconstitutional, and future presidents can overturn a previous president’s executive order. Thus, if a foreign alien wishes to take advantage of any of these new measures, it is best for them to act as soon as these policies are put in place.

We provide summaries of the orders and their implications below:

1. Deferred Action for Childhood Arrivals (DACA) Program

Previously, individuals without lawful status who were brought to the U.S. before their 16th birthday were able to apply for deferred action and employment authorization if they were under the age of 31 as of June 15, 2012, and had been a continuous resident of the U.S. since June 15, 2007. However, under these new executive orders, the age cap has been removed and the continuous residence requirement has been relaxed to Jan. 1, 2010. The deferred action and employment authorization period has also been extended to three years (up from two).

2. Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents 

Previously, the government provided no relief for individuals who were living in the U.S. without status with their U.S. citizen or lawful permanent resident (LPR) children. Now, these parents can request deferred action and employment authorization if:
• They have had continuous residence in the U.S. since Jan. 1, 2010;
• They gave birth to a U.S. citizen or LPR born on or before Nov. 20, 2014; and
• They are not an enforcement priority for removal to the U.S. (public safety threat, criminal, etc.).

3. Provisional Waivers of Unlawful Presence 

Undocumented individuals who have resided unlawfully in the U.S. for at least 180 days and who are the spouses, sons, and daughters of LPRs or the sons and daughters of U.S. citizens may now be allowed to get a waiver so that they can apply for permanent residency at a consulate abroad and avoid denial of entry upon return to the U.S.

4. Clarifying and Improving Current Immigrant and Nonimmigrant Programs 

The executive orders are anticipated to help U.S. businesses as well as foreign investors, researchers, inventors, and skilled workers by improving methods for allocating immigrant and nonimmigrant visas more efficiently and providing guidance on evidentiary requirements when preparing visa petitions. These measures include:
• Removing unnecessary employment restrictions from workers facing lengthy adjustment of status delays;
• Clarifying the standard for granting national interest waivers to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy;
• Developing a clearer standard for authorizing parole for inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver;
• Finalizing a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to LPR status;
• Expanding use of optional practical training (OPT) for foreign students; and
• Providing clearer guidance on the meaning of “specialized knowledge” for the L-1B visa category and improving consistency for L-1B application adjudications.

5. Promote the Naturalization Process

The final executive order aims to promote citizenship education and public awareness for LPRs, to allow naturalization applicants to use credit cards to pay the application fee, and to assess the potential for partial fee waivers in the future.

Berardi Immigration Law can provide immigration related services on many of the issues described above. If you wish to speak with one of our immigration attorneys, please contact our office to schedule a consultation.

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