What Is DACA?
On November 20, 2014, President Barack Obama issued an Executive Order reforming five areas of immigration law. The impact that this program will have in our community cannot be overstated. According to the Pew Research Center for Hispanic Studies, the State of Florida has approximately 912,000 undocumented individuals as of 2012. Some researchers believe that up to six percent of Florida’s entire work force lacks the appropriate documentation to reside and work legally in the state.
Generally, undocumented individuals work in industries such as construction, hospitality, food service and janitorial services. Employers, employees and families alike will benefit greatly from the changes to the following categories:
Early Childhood Arrivals
The President expanded the reach of the Deferred Action on Early Childhood Arrivals (“DACA”). Previously, only individuals born after June 15, 1981, were eligible to apply for this benefit. Now, so long as the individual arrived before they turned 16 years of age, they are eligible to apply. Further, individuals continuously residing in the United States since January 1, 2010 are now eligible to apply. Expect the proposed changes to go into effect on February 18, 2015.
Parents of United States Citizens and Legal Permanent Residents
The President also extended DACA to parents of United States Citizens and Lawful Permanent Residents. This program enables a parent seeking deportation relief to qualify for DACA as long as the parent shows a qualifying relationship to either a United States Citizen or a Lawful Permanent Resident and can demonstrate that he or she is otherwise eligible for deferred action. These proposed changes are expected to go into effect on May 19, 2015.
Unlawful Presence Waivers
The unlawful presence waiver provide a great benefit to the immigrant. The President expanded the number of individuals that qualify for the unlawful presence waiver as follows:
- Sons and daughters of U.S. Citizens; and
- Spouses and sons or daughters of Lawful Permanent Residents.
Previously, only immediate relatives of United States Citizens qualify for this benefit. United States Citizenship and Immigration Service (“USCIS”) defines an immediate relative as either “the spouse” or “unmarried child under the age of 21” of a United States Citizen. Generally, if an individual has a petition approved with USCIS, that individual, if lawfully present, may adjust status and reside in the United States. However, an individual unlawfully present must leave the United States in order to adjust status to that of a Lawful Permanent Resident. Leaving the United States will trigger a three-year or a ten-year ban from the United States. Immediate relatives benefit from the unlawful presence waiver and overcome these bans. Under the proposed law, sons, and daughters of United State citizens as well as the spouses, sons and daughters of Lawful Permanent Residents will be able to apply for the Unlawful Presence Waiver.
Expansion of the Curricular Practical Training
The Executive Order increased the number of individuals that qualify for Curricular Practical Training (“CPT”) and National Interest Waiver program. Foreign students in Science, Technology, Mathematics, Computer Science and Information Technology are likely to benefit from these changes. However, at this time, the Executive Order did not specify the final changes. As soon as USCIS makes changes available, we will post them here.
Normally, if a business requires the talent of a foreign national, the employer can apply for a visa. Generally, employers must show through a long and arduous process that there is a shortage of qualified individuals in the United States that could fulfill the particular position for the employer. This process is known as a labor certification. An employer must obtain a labor certification from the Department of Labor, which then forwards its findings to USCIS. These waivers are difficult to obtain. Under the proposed changes, certain individuals already in the United States that may not currently qualify for a National Interest Waiver may now qualify without fear of deportation while they continue to develop their project or specialized skills.
The administration understands the high cost of applying for citizenship, and will allow individuals to pay filing fees using a credit card. Additionally, the administration will look at the feasibility of providing partial fee waiver requests.
These changes are new and temporary and were made by executive action. A new administration in January 2, 2017, has the power to eliminate all of these programs. Also, Congressional action could reverse, change, and alter the individuals currently eligible for relief. However, once an individual obtains a temporary legal status in the country, an experienced immigration attorney can create a sound immigration strategy that may lead to lawful permanent residence and citizenship.
In 1996, Congress made it a criminal offense for “any individual that knowingly hires at least ten individuals with actual knowledge that they are not authorized to work in the United States.” The employer’s criminal liability per employee ranges from $275 to $2,200 for first time offenders to $4,300 to $16,000 for repeat offenders, plus a potential six months imprisonment for each violation. The employer is also subject to suit from legal workers (and in some limited instances illegal workers) under the Racketeer Influenced and Corrupt Organization Act (“RICO”). A plaintiff that is successful under a RICO cause of action may recover compensatory damages, punitive damages in the amount of three times the compensatory damages and attorney’s fees.
Our experienced immigration attorneys have years of experience navigating the complex immigration system on behalf of our clients. Each case is unique and an individual should not make this decision without first seeking the advice of a competent immigration attorney. For your specific case please contact our offices or call 866-583-9129.