In what is considered a bold move by some – and an unconstitutional one by others – President Barrack Obama’s recent announcement of the executive order to relieve almost 5 million undocumented immigrants of the threat of deportation and to allow parents whose children are U.S. Citizens (USC), or otherwise in the U.S., to legally qualify for work permits has placed the onus on Congress to take action.  President Obama explained “[w]hat I’m describing is accountability — a common sense, middle-ground approach: If you meet the criteria, you can come out of the shadows and get right with the law.”  However, those doors may still be closed for certain individulas:  those who have been convicted of certain criminal activity while living in an undocumented status in the U.S.

One thing is certain: although President Obama has given us a generalized statement of the purpose and certain specific qualifications of who may be eligible, we do not yet know all of the specifics.  However, United States Citizenship and Immigration Services (USCIS) has set out an outline of who is eligible and the general requirements on their website. [1]  President Obama announced that specific criteria and a new application process will be made available sometime in the spring of 2015.  Another major change is that undocumented sons or daughters of USC and spouse and sons or daughters of lawful permanent residents who have incurred unlawful status of USC will be eligible for provisional waivers, thus, expanding those eligible for this waiver. [2]

In addition, “[u]ndocumented immigrants eligible for these protections would not be entitled to receive federal benefits, including subsidies to obtain health insurance under the Affordable Care Act” as noted by Voice of America News.com. [3]  This executive order would neither lead to any pathway for citizenship, nor permit legal permanent residency.  Although, the deferred action for “[d]reamers” is also expected to be expanded by lifting the age restrictions on people who qualify, the parents of young immigrants would not be eligible for deferred action despite the desires of immigration advocates.

It is a known fact that the U.S. has struggled with a broken immigration system and poor border security. Because Congress has failed to take action on immigration reform, President Obama dared his opposition on this executive order to simply “pass a bill.”

The Republican members of Congress are calling the President’s move “an imperial action.”  Yet, it is clear that President Obama has Constitutional authority to back up his decision; the same authority employed by previous presidents like George H.W. Bush and Ronald Reagan, to name a few. [4]

It is dismaying, but not surprising, that Kentucky’s own soon to be Senate majority leader, Mitch McConnell labled “the action proposed [by President Obama] would ignore the law, would reject the voice of the voters and would impose new unfairness on law-abiding immigrants, all without solving the problem.”  Senator McConnell, however, fails to state that poll after poll shows that the majority of the public yearns for Congress to pass a bipartisan bill giving undocumented immigrants a pathway to citizenship instead of deportation. [5]  Senator McConnell also fails to address the immigration bill that cleared the Senate [6] but was allowed to die on the floor of the Republican controlled House of Representatives. [7]

Not considering the legal battles and political banter, how does this executive action concern those who have been living in the United States with an undocumented status?  All of this information will undoubtedly raise concerns, questions, and doubts about who will benefit most from this new action.

Although much information will be posted and broadcasted through the social media outlets and news, I primarily wish to inform you of some key points of interest to this executive order from the perspective of an immigration attorney:

1. Most important point: Be careful of FRAUD.

There is no date certain by which U.S. Customs and Immigration Services (USCIS) will begin to take applications. Therefore, do not act on any legal advice from non-attorneys unless they are an agency duly authorized to practice law in front an immigration court; do not fill out any forms or make any payments to “Notarios” who claim they can help you to apply for an expedited application that will put you ahead of the rest. No person, even a trained immigration attorney, can magically get your case approved before the application process is rolled out by USCIS.  The President has stated the process will begin some time in Spring of 2015.

2. What are the benefits?

Applicants will be able to obtain a work permit, which will entitle them to legally work in the United States.  Applicants will also have a minimum three-year deferred action against deportation. It is unclear at this point, however, whether this period of deferred action will be allowed to be renewed for additional periods of time.  Please also keep in mind that a future president may revoke this executive order at any time.  You will want to thoroughly discuss the risks and benefits with a trained immigration lawyer or duly authorized practitioner.

3. Who will benefit?

Undocumented parents of permanent residents or U.S. Citizens who can prove that they have lived in the U.S. prior to January 1, 2010 and can prove that they have continually resided in the U.S. through the launch of the application process – sometime in the spring of 2015 – will be the primary beneficiaries of this action.  Another group that will benefit are children or teenagers who entered the U.S. before the age of 16 and before January 1, 2010 without regard to their current age.

4. When can you apply?

No exact date has been given, but the USCIS website says within 6 months of the President’s annoucement.

5. What are the requirements?

Taking advantage of this new deferred action will require verification of identity, criminal history, payment of taxes, and payment of immigration fees.

6. What can you do at the present moment?

For parents of LPRs or USCs

Consult with a licensed immigration attorney in good standing with the bar association of your state. [8] Begin collecting information that will prove your identity, such as a birth certificate or a passport from your country of origin.  Begin to collect evidence showing you have a child who is a legal permanent resident or U.S. Citizen and evidence showing that you have lived in the U.S. prior to January 1, 2010, i.e. apartment leases, phone bills, utility bills, medical bills, car insurance, pay checks, and copies of money sent through western union or a similar agency to family back home.  Finally, if you haven’t filed taxes, you will need to get your tax situation in order.

For those who arrived here under the age of 16 prior to January 1, 2010 Begin to collect information that will prove your identity, such as a birth certificate or a passport from your country of origin;  begin to collect school records showing where you went to school; and begin to collect any other evidence that would show you have continuously resided in the U.S. since January 1, 2010.

Remember, this executive order is not a pathway to citizenship nor legal permanent status but rather a TEMPORARY solution known as deferred action, which names a specific period of time where the government agrees not to deport the applicant.  For that reason, you should seek consultation with a qualified immigration attorney before making this extremely important decision.   If ICE authorities should detain you, DO NOT sign a voluntary deportation and ask to have your matter be heard by an immigration judge then contact an immigration attorney immediately.


[1] http://www.uscis.gov/immigrationaction#1

[2] Id.

[3] http://www.voanews.com/content/obama-to-announce-immigration-reforms/2527558.html

[4] http://www.politifact.com/punditfact/statements/2014/nov/20/rachel-maddow/maddow-obama-and-ghw-bush-solo-immigration-moves-a/

[5] http://americasvoice.org/blog/making-sense-polling-immigration-americans-strongly-prefer-action-inaction/

[6] http://www.politico.com/story/2013/06/immigration-bill-2013-senate-passes-93530.html

[7] http://abcnews.go.com/Politics/president-obama-announces-unilateral-action-immigration/story?id=24368748

[8] For Kentucky see http://www.kybar.org/; and for Indiana see http://www.inbar.org/

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