Smart Immigration Lawyer

  • About Me
  • My Services
  • Free Consultation
  • Our Offices
  • Blog
  • Client Reviews
  • Fiance Visa
    • Introduction to the K-1 Fiance Visa
    • Legal Requirements for the K-1 Fiance Visa
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • Spouse Visa
    • Introduction to the Spouse Visa
    • Legal Requirements of the Spouse Visa
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • Adjustment of Status
    • Introduction to Adjustment of Status
    • Legal Requirements for Adjustment of Status
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • I-601 Waiver
    • Introduction to the I-601 Waiver
    • Legal Requirements of the I-601 Waiver
    • What is Extreme Hardship
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
  • I-212 Waiver
    • Introduction to the I-212 Waiver
    • Legal Requirements of the I-212 Waiver
    • How Much It Costs
    • Why Hire Me
    • How You Can Get Started
    • I-212 Filing Locations
  • I-601A Provisional Waiver
    • Introduction to the I-601A Provisional Waiver
    • Legal Requirements of the I-601A Provisional Waiver
    • What is Extreme Hardship
    • I-601A Provisional Waiver Fee & Cost
    • Why Hire Me for the I-601A Provisional Waiver
    • How You Can Get Started on the I-601A Provisional Waiver
  • 212(d)(3) General Waiver
  • 212(h) Waiver for Crimes
  • Inadmissibility and Waivers Chart

Deferred Action Expanded by Obama Executive Order

November 24, 2014 By Michael Cho Immigration Lawyer Leave a Comment

Deferred Action Expanded by Obama Executive Order

Deferred action is a form of prosecutorial discretion by which the Secretary of Homeland Security de-prioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the U.S. Department of Homeland Security’s overall enforcement mission.  As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion.

Deferred action does not confer any form of legal status in the U.S., much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.  Nor can deferred action itself lead to a green card.  Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes.

Most recently, beginning in 2012, Secretary Napolitano issued guidance for case-by-case deferred action with respect to those who came to the United States as children, commonly referred to as “DACA.”

DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 20 12 provided deferred action for a period of two years.  On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.

In order to further effectuate this program, USCIS has been directed to expand DACA as follows:

Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today.  The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981 ). That restriction will no longer apply.

Extend DACA renewal and work authorization to three-years.  The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments.  This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014.  Beginning on that date, USCIS should issue all work authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants.  USCIS should also consider means to extend those two-year renewals already issued to three years.

Adjust the date-of-entry requirement.  In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010.

EXPANDING DEFERRED ACTION

USCIS has been directed to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:

• have, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident;

• have continuously resided in the United States since before January 1, 2010;

• are physically present in the United States on November 20,2014, and at the time of making a request for consideration of deferred action with USCIS;

• have no lawful status on November 20, 2014

• are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and

• present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.

DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.

Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. 

Filed Under: Blog, DACA, Deferred Action, Executive Order

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

October 24, 2013 By Michael Cho Immigration Lawyer 2 Comments

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

The Legal Action Center has released a report which confirms a positive development for some DACA recipients who previously had only the option of applying for lawful permanent residence through the I-601A Provisional Waiver process.   I excerpt the relevant portions below:

“On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA).  One of the benefits of DACA is that the recipient may seek permission to travel abroad temporarily for humanitarian, educational, or employment purposes.  A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole.  If a DACA recipient travels abroad and returns under a grant of advance parole, then s/he is “paroled” into the United States within the meaning of INA §245(a), and may qualify for adjustment of status.”

“In Matter of Arrabally and Yerrabelly, the Board held that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under INA § 212(a)(9)(B)(i)(II).  While Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment applications, the USCIS Administrative Appeals Office (AAO) has since applied this analysis in at least several cases involving individuals holding Temporary Protected Status (TPS), each of whom left temporarily following the accumulation of more than one year of unlawful presence and then returned to the United States under advance parole.  Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that waivers of inadmissibility were not necessary.

Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole.  Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure within the context of INA § 212(a)(9)(B), pursuant to Matter of Arrabally and Yerrabelly.”

Thus, advance parole may make some DACA recipients gain the dual benefit of eliminating exposure to the 3 or 10 year unlawful presence bars they are subject to pursuant to INA § 212(a)(9)(B); and gaining eligibility for adjustment of status, thereby eliminating the need to consular process through the U.S. embassy in their home country.

This positive development ONLY applies for DACA recipients who are the spouses of U.S. citizens or children (unmarried and under 21 years of age) of U.S. citizen parents, who are not subject to any other grounds of inadmissibility (aside from the 3 or 10 year unlawful presence bar under INA § 212(a)(9)(B)).  This group may no longer need to apply for lawful permanent residence through the I-601A Provisional Waiver process.  Instead, they can now apply for advance parole; depart from the U.S.; and re-enter the country to proceed with their adjustment of status to lawful permanent residence within the United States.

Keep in mind that the inspecting immigration officer at the port of entry may deny entry into the United States if the officer finds that any of the inadmissibility grounds apply.  Thus, even after being granted advance parole as a DACA recipient, you should make absolutely sure you are not subject to any of the other grounds of inadmissibility before departure from the U.S.

For example, there should be no outstanding orders of removal on file.  You should not be subject to previously incurred immigration bars, such as the unlawful presence bars under INA § 212(a)(9)(B) or the permanent bar under INA § 212(a)(9)(C), based a prior departure before obtaining advance parole.  You should not be subject to the criminal grounds of inadmissibility under INA § 212(a)(2) or for fraud/misrepresentation under INA § 212(a)(6)(C).  It is important that an immigration lawyer with particular expertise in waivers and the immigration grounds of inadmissibility guide you through this process.  Matter of Arrabally and Yerrabelly is not a precedent decision and you must proceed with caution.

Filed Under: 601 Waiver News, Adjustment of Status, Advance Parole, Blog, Deferred Action, Entered Without Inspection, I-601A Provisional Waiver, Inadmissibility, Unlawful Presence

Get Started Today

You may request a Free Immigration Consultation.

If you would like to speak with me immediately to begin a case with our firm today, please call 323.238.4620.

Check Out Our Client Reviews

Read what people like you are saying about us on Facebook in our Client Testimonials.

Recent Posts

  • I-601 Waiver for Fraud/Misrepresentation Approved, Inadmissibility for Crimes Involving Moral Turpitude Removed, after Successful Writ of Mandamus Federal Lawsuit
  • I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse currently residing outside the United States
  • 212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude
  • I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude
  • I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance

Blog Posts on Waivers

  • 212 Waiver News
  • 212(a)(2)(A)
  • 212(a)(2)(D)
  • 212(a)(3)(D)
  • 212(a)(6)(8)
  • 212(a)(6)(C)(i)
  • 212(a)(9)(A)(i)
  • 212(a)(9)(B)(i)(I)
  • 212(a)(9)(B)(i)(II)
  • 212(a)(9)(B)(v)
  • 212(a)(D)(iv)
  • 212(d)(3) Waivers
  • 212(g) Waiver
  • 212(h) Waiver
  • 212(i) Waiver
  • 601 Waiver News
  • Adjustment of Status
  • B-1 Business Visa
  • Colombia
  • Communist Party Membership
  • Controlled Substance Violation
  • Crime of Moral Turpitude
  • Criminal Admissions
  • Criminal Convictions
  • Discretion
  • Drug Conviction
  • DUI – Driving under the Influence
  • E-2 Treaty Investor
  • Entered Without Inspection
  • Exceptional Circumstances
  • Exceptional or Extremely Unusual Hardship
  • Expedited Approval
  • Expedited Removal
  • Extreme Hardship
  • Fiance Visa
  • Fiance Visa Approvals
  • Fraud
  • Health-related Ground of Inadmissibility
  • Humanitarian Parole
  • I-192 Waivers
  • I-212 Waivers
  • I-601 Appeal with AAO
  • I-601 Waivers
  • I-601A Provisional Waiver
  • IMBRA Waiver
  • Immigrant Intent
  • Inadmissibility
  • India
  • Israel
  • Marijuana
  • Misrepresentation
  • Nicaragua
  • Overstay
  • Petty Offense Exception
  • Physical or Mental Health Disorder Inadmissibility
  • Previous Removal
  • Prosecutorial Discretion
  • Prostitution
  • Removal Proceedings
  • Request for Evidence (RFE)
  • Romania
  • Spouse Visa
  • Turkey
  • Unlawful Presence
  • Violent or Dangerous Crimes
  • Waiver Approvals
  • Writ of Mandamus

Search

Get Answers Now

You may request a Free Immigration Consultation.

Check Out Our Client Reviews

Read what people like you are saying about us on Facebook in our Client Testimonials.

Recent Posts

  • I-601 Waiver for Fraud/Misrepresentation Approved, Inadmissibility for Crimes Involving Moral Turpitude Removed, after Successful Writ of Mandamus Federal Lawsuit
  • I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse currently residing outside the United States
  • 212(d)(3) Non-Immigrant Waiver Approved for B-1/B-2 Visa Applicant Charged with Fraud/Misrepresentation and Conviction of Crimes involving Moral Turpitude
  • I-601 Waiver Pursuant to INA 212(h)(1)(A) and INA 212(h)(1)(B) Approved for Israeli Applicant Charged with Crimes involving Moral Turpitude
  • I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance
FacebookLinkedInTwitter
American Immigration Lawyers Association Los Angeles County Bar Association State Bar of California University of Chicago Law School

Copyright © 2023 Smart Immigration Lawyer. All Rights Reserved.

Privacy Policy | Cookie Policy