Immigration Law

News Excerpts From the Dec. 15, 2014, Bender’s Immigration Bulletin

Administration Takes Executive Action on Immigration |

On November 20, 2014, Secretary of Homeland Security Jeh Johnson issued a series of memoranda as part of a much-anticipated “executive action” to remedy problems in the nation’s immigration system.

  • A memorandum entitled “Policies Supporting U.S. High-Skilled Businesses and Workers” (reprinted at Appendix A) ordered USCIS to work with the Department of State to ensure that employment-based immigrant visas do not go unused, to develop regulations to expand the fields eligible for Optional Practical Training, to clarify the standards by which national interest waivers can be granted, to propose a program for entrepreneurs to be paroled into the country, to issue guidance on the meaning of “specialized knowledge,” and to issue a policy memorandum on whether a position qualifies as a “same or similar” job for purposes of portability.


  • A memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents” (reprinted at Appendix B) lifted the age cap to qualify for relief under the Deferred Action for Childhood Arrivals program and announced that parents of U.S.- citizen or LPR children who have resided in the United States since January 1, 2014, will qualify for deferred action under a program that will be implemented in 2015.


  • A memorandum entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (reprinted at Appendix C) rescinded five prior memoranda addressing the exercise of prosecutorial discretion and listed a new set of criteria for determining whether a noncitizen is an enforcement priority.


  • A memorandum entitled “Expansion of the Provisional Waiver Program” (reprinted at Appendix D) ordered the issuance of regulations to allow all noncitizens for whom an immigrant visa is immediately available to apply for a provisional unlawful presence waiver (Form I-601A), not only immediate relatives of U.S. citizens, as well as additional guidance on the meaning of “extreme hardship.”


  • A memorandum entitled “Families of U.S. Armed Forces Members and Enlistees” (reprinted at Appendix E) ordered USCIS to develop policies to provide parole-in-place to immediate relatives of noncitizens seeking to enlist in the U.S. Armed Forces.


  • A memorandum entitled “Directive to Provide Consistency Regarding Advance Parole” (reprinted at Appendix F) stated that the DHS General Counsel’s office will issue guidance clarifying that noncitizens who physically leave the United States pursuant to a grant of advance parole will not be considered to have made a “departure” for purposes of the unlawful presence bars, consistent with the decision of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I. & N. Dec. 771 (BIA 2012).


  • A memorandum entitled “Policies to Promote and Increase Access to U.S. Citizenship” (reprinted at Appendix G) directed USCIS to allow applicants for naturalization to pay the application fees by credit card and to consider a partial waiver of the fee for applicants who do not qualify for a full waiver, among other policies.


  • A memorandum entitled “Secure Communities” (reprinted at Appendix H) discontinued the Secure Communities program in favor of a similar initiative called the Priority Enforcement Program.


  • A memorandum entitled “Southern Border and Approaches Campaign” (reprinted at Appendix I) established three joint task forces to better enforce the immigration laws along the West Coast and southern land and maritime borders.
  •  A memorandum entitled “Personnel Reform for Immigration and Customs Enforcement Officers,” ordered a review of personnel and pay structures for ICE’s Enforcement and Removal Operations employees. 

The day after the release of the DHS memos, the White House issued two Presidential Memoranda addressed to all executive departments and agencies. One memorandum, entitled “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century,” orders officials to offer recommendations within 120 days to streamline and improve the legal immigration system. The other memorandum, entitled “Creating Welcoming Communities and Fully Integrating Immigrants and Refugees,” establishes a “White House Task Force on New Americans” to develop an immigrant integration strategy. The memoranda are reprinted at Appendix J and Appendix K.

Complaint Highlights Inadequate Screening Procedures for Asylees at Border

On November 13, 2014, a coalition of immigrant and civil rights groups submitted a complaint to the Department of Homeland Security regarding the inadequacy of procedures used by Customs and Border Protection to screen individuals fleeing persecution for potential asylum claims.

According to the complaint, which was sent to both the DHS Inspector General and DHS Office of Civil Rights & Civil Liberties, CBP officers have frequently issued expedited removal orders against individuals who should have been referred for a credible fear interview with an asylum officer.

The complaint was submitted by American Gateways, the American Immigration Lawyers Association, the Center for Gender & Refugee Studies, Centro de la Raza Legal, Human Rights First, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the National Immigrant Justice Center, the Texas Civil Rights Project, the Immigration Clinic at the University of Texas Law School, and the Women’s Refugee Commission.

Labor Department To Certify Applications for T Visas, Expand Certifications for U Visas

Beginning in 2015, the Department of Labor’s Wage and Hour Division will begin certifying applications for T visas for victims of trafficking, and will begin certifying applications for U visas for individuals assisting in the investigation or prosecution of employers charged with extortion, forced labor, and fraud in foreign labor contracting. The Labor Department expects to publish a notice in the Federal Register by the end of the year.

Bender's Immigration Bulletin

[This is an excerpt from the Dec. 15, 2014, issue of Bender's Immigration Bulletin.]

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