Immigration Accountability Executive Action (Obama 2014)

As people digest the possible immigration changes of a new administration in Washington, there is an effort to calm the anxiety.

Today, President Obama issued a statement that is aimed at “DREAMers” who have had the opportunity to come out of the shadows, secure a legal status, including employment authorization and a driver’s license by virtue of the DACA (Deferred Action for Childhood Arrivals).   DACA is based on executive action and may be done away with by a new administration.

Mr. Obama said:  “These are kids who were brought here by their parents. They did nothing wrong. They’ve gone to school. They have pledged allegiance to the flag. Some of them have joined the military…By definition, if they’re part of this program, they are solid, wonderful young people of good character. And it is my strong belief that the majority of the American people would not want to see suddenly those kids have to start hiding again.”

Today, USCIS issued a statement that it is continuing to make its decisions based on the current law.  In a stakeholders announcement,  USCIS stated:

“Many USCIS customers have been contacting us with questions regarding current immigration programs and possible future immigration policies. We continue to process all applications, petitions, and requests consistent with current statutory laws, regulations, and policies. USCIS cannot comment on what sort of policies the incoming Administration may choose to prioritize or pursue.  We remain focused on our mission to administer U.S. immigration laws and to provide a high level of service to our customers.”

On November 18th, USCIS published proposed regulations, some of which have been in the works for more than a decade.  These regs, entitled “Retention of EB1, EB-2 and EB 3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”, contain important clarifications of employment based immigration.  This becomes final on January 17, 2017.  Mr. Trump takes Office on January 20.

We encourage the public to be extra vigilant about immigration scams. Scammers take advantage of times of uncertainty. For information on protecting yourself and your loved ones, visit . Remember, “the wrong help can hurt!”

On January 21, 2016 The Department of Homeland Security and The Department of State jointly issued a statement that the United States began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, where travelers in certain categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP).

The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.

Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.

Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.

The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.

An updated ESTA application with additional questions is scheduled to be released in late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.

Information on visa applications can be found at

Current ESTA holders are encouraged to check their ESTA status prior to travel on CBP’s website at


Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or

This week, the US Supreme Court agreed to hear the challenge to President Obama’s Immigration Executive Action regarding the exercise “prosecutorial discretion” for certain undocumented parents of US citizen children.  The program was announced in November 2014 and enjoined before it was implemented.  The injunction that was affirmed by the United States Court of Appeals for the 5th Circuit was as a result of an action brought by a coalition of 26 states.  The program at issue, known as DAPA, is intended to allow several million people to be spared from removal from the US because of their being low priority, low risk undocumented aliens whose only offense is being out or status or having entered the US without inspection.   

The case has significant Constitutional implications as the Supreme Court directed the parties to address the “take care clause” of the Constitution.

 Set forth in Article 2, Section 3, Clause 5 of the United States Constitution is a clause which states that the President of the United States must “take care that the laws be faithfully executed”.  This means that the laws must be “faithfully executed” by the President, even if he disagrees with the purpose of the law.  As the clause relates to Deferred Action for Parents of Citizens (DAPA), it is a fascinating constitutional question of the balance of power of the 3 branches of government. The decision could redefine the limits of all Executive Action undertaken by a US President, not just in regard to immigration.

 For the millions of parents of US citizens who are undocumented, who fear removal and family separation and have been waiting for some relief, the answer to the question is not esoteric or scholarly or theoretical, it’s their lives. Millions of parents of US citizens whose only legal violation is being undocumented…not being criminals or terrorists or rapists or…only being the folks next door…the importance of the President’s exercise of prosecutorial discretion so that they can be lawfully present can’t be over stated.

 In 1986, Congress acted to address the millions of undocumented in the US by passing the Immigration Reform and Control Act (IRCA).  Those who qualified for amnesty under IRCA were on the road to citizenship.  Those who would benefit from DAPA are not on the road to citizenship, only lawful presence.  Before signing IRCA into law, President Ronald Reagan said:  ”I believe in the idea of amnesty for those who put down roots and lived here, even though some time back they entered illegally…”  I couldn’t say it any better than that.


The White House released a fact sheet on the Visa Waiver Program (VWP) (see below) , including information on new security changes announced yesterday. The fact sheet states that DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. In addition, DHS Secretary Jeh Johnson issued a statement on steps that have been taken to strengthen the screening of those who are traveling to the United States, including security enhancements to the VWP.

WHITE HOUSE FACT SHEET: Visa Waiver Program Enhancements

The Visa Waiver Program (VWP) permits visa free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP utilizes a layered system of security to detect and prevent terrorists, serious criminals, and other potentially dangerous individuals from traveling to the United States.  These layers of security include comprehensive screening of VWP travelers prior to departure for the United States, at various points throughout the traveler’s journey, and upon arrival at U.S. ports of entry.

Over the past year, the Administration has taken a series of steps to enhance the significant security measures in the VWP. In the wake of the attacks in Paris, the administration is announcing additional actions today that will further enhance and accelerate these changes. Additionally, the Administration is working closely with Congress to provide statutory authority for many of these security enhancements, which will further improve our ability to implement and enforce the changes.

How Does the Visa Waiver Program Work?

  • Every prospective VWP traveler undergoes counterterrorism screening and must receive approval through DHS’ Electronic System for Travel Authorization (ESTA). Through ESTA, DHS evaluates whether individuals are eligible to travel to the United States under the VWP before they are allowed to board a carrier bound for the United States.
  • The counterterrorism screening draws on information from U.S. law enforcement and intelligence agencies. DHS uses this information to decide if the travel poses any law enforcement or security risks.  Without DHS approval through ESTA, VWP travelers cannot travel to the United States and must appear in person for a visa interview before they can be authorized to travel to the United States.
  • This process has been enhanced repeatedly to improve security and more effectively identify individuals who might pose a threat to the United States.
  • Travelers must be a citizen of a VWP country to use the program.  Residence in a VWP country, or the possession of refugee travel documents issued by a VWP member state, does not qualify an individual for VWP travel.

Recently Enhanced Security Measures

DHS, in consultation with the Department of State, continuously adapts the VWP to address current threats. Over the last year, the Department of Homeland Security and the Department of State, in coordination with several other federal agencies, have made a number of significant enhancements to the VWP to ensure our security apparatus continues to adapt in the face of evolving threats.

  • DHS introduced additional data fields to the ESTA application in November 2014 that already have produced security benefits.
  • DHS introduced new traveler screening and information sharing requirements for VWP countries in August 2015 specifically to address the threat posed by foreign terrorist fighters.
  • DHS and the Department of State are working with VWP partners to implement the new VWP requirements, which will strengthen U.S. security and the security of our partners.
  • These security enhancements are part of our continuing assessments of U.S. security in the face of evolving threats and challenges, and our determination to stay one step ahead of those threats and challenges.

New Changes Announced Today

Given the terrorist attacks in Paris and the ongoing threat posed by foreign terrorist fighters, the United States is aggressively strengthening its Visa Waiver Program and bolstering our relationships with VWP partners by immediately moving forward on the following administrative actions:

  • DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven.  The Director of National Intelligence, in coordination with the Secretary of Homeland Security, will identify and regularly review these countries so that traveler risk assessments can be made on the most up-to-date information.
  • The Department of Homeland Security, in consultation with the Secretary of State and other appropriate agencies will accelerate its review process for VWP partner countries and within 60 days, will provide a full report to the President:
    • Identifying possible pilot programs designed to assess the collection and use of biometrics (fingerprints and/or photographs) in the VWP to effectively increase security; and
    • Identifying any countries that are deficient in key areas of cooperation, along with recommended options to engender compliance using a range of penalties and incentives available under his current authority including the more frequent submission of ESTAs and/or the suspension of ESTA issuances (new and/or renewals) for citizens of countries that fail to meet key metrics.
  • The Director of the Federal Bureau of Investigation will evaluate the terrorism information sharing that occurs between the United States and VWP countries, in consultation with the Director of National Intelligence and the Secretaries of State and Homeland Security, and provide a report to the President of the United States within 60 days identifying options to mitigate any deficiencies.
  • DHS will offer assistance to countries to better facilitate terrorism information sharing, specifically to include biometric pilots.  For example, DHS and the Terrorist Screening Center will assist all interested VWP countries in screening refugees or asylum seekers, including through the application of extensive terrorism information already provided to VWP members and through piloting capability for conducting near real time biometric checks.
  • The Secretaries of DHS, State, and Commerce will promote the Global Entry program among VWP partners to further expand this trusted traveler program, which includes biometrics.
  • The Secretary of Homeland Security will work with Congress to seek authority to increase Advance Passenger Information System (APIS) fines from $5,000 to $50,000 for air carriers that fail to verify a traveler’s passport data.
  • The Departments of Homeland Security and State, the Federal Bureau of Investigation, and U.S. intelligence community elements will deploy Foreign Fighter Surge Teams to work with countries to counter terrorist travel.
  • The Departments of Homeland Security and State will encourage and provide assistance as needed to enhance border security and legislation related to FTFs of our partner countries, and encourage more robust information sharing, better use of shared information, and more effective and efficient coordination between our partners.

Working with Congress to Enhance the Visa Waiver Program

The Administration is working with Congress to provide statutory authority for many of the key security enhancements to VWP, including:

  • Improving our ability to identify individuals who may have traveled to conflict zones to train or fight with terrorist organizations or other adversaries and increasing information sharing between our VWP partners and INTERPOL;
  • Maximizing the use of international agencies like INTERPOL to track lost and stolen travel documents, and to prevent their usage for illicit travel;
  • Encouraging VWP partner countries to share information and to use that information in their own border screening activities;
  • Accelerating the requirement for 100% of VWP travelers to use e-passports (i.e., passports with embedded security chips);
  • Exploring how biometrics could be effectively added to the VWP process; and
  • Expanding the use of the DHS’ Customs and Border Protection (CBP) Preclearance program, through which CBP law enforcement officers inspect passengers and their baggage – to include collecting and screening biometrics where appropriate – at foreign airports prior to departing for the United States
    • Through the current round of expansion, CBP is in negotiations with airports in seven VWP participant countries (Belgium, Japan, Norway, Netherlands, Spain, Sweden, and the United Kingdom). Support for Preclearance expansion will greatly increase border and aviation security in the United States and abroad.


Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or


In a move that has crushed the hopes of untold numbers of would-be applicants for US permanent residence, the US Department of State (USDOS) issued a revised October 2015 Visa Bulletin which dramatically set back the new “Dates for Filing Applications”.  See

The revised October 2015 Visa Bulletin was issued last Friday, September 25, 2015, and supersedes the October 2015 Visa Bulletin that was issued on September 9, 2015.

As a result, the following categories now have later filing dates as indicated:

Category                  NEW Filing Date

EB-2 China…………..1/1/2013 (back 1 year and 5 months from the original October 2015 Visa Bulletin)

EB-2 India……………..7/1/2009 (back 2 years from the original October 2015 Visa Bulletin)

EB-3 Philippines…..1/1/2010 (back 5 years from the original October 2015 Visa Bulletin)

FB-1 Mexico…………..4/1/1995 (back 3 months from the original October 2015 Visa Bulletin )

FB-3 Mexico…………..5/1/1995 (back 1 year and 5 months from the original October 2015 Visa Bulletin ).

This means that an intending greencard applicant may only file an adjustment application in October 2015 if his or her priority date is earlier than the Date for Filing as listed in the revised October 2015 Visa Bulletin (the one that was released on September 25, 2015).

It’s impossible to tell how many people were fervently working toward preparing adjustment applications AND making life decisions based on the previously issued Dates for Filing.

As they say, “easy come, easy go”, but this just doesn’t seem fair.  Questions are also being raised regarding the legality of this unexpected move.


Ms. Wadhwani is a partner in the Immigration Practice group of Fox Rothschild LLP.  She may be reached at

The procedures regarding immigrant visa availability have changed for the benefit of intending US permanent resident (i.e., greencard) applicants. These changes are reflected in the October 2015 Visa Bulletin which may be viewed at

The US Department of State’s (DOS’s) monthly Visa Bulletin will now include two charts per visa preference category for Family-based and Employment-based applicants as follows:

Dates for Filing Applications (Sections 4.B. and 5.B of Visa Bulletin)

In Sections 4.B. (Family-Sponsored Preference Cases) and 5.B. (Employment-Based Preference Cases), “Application Final Action Dates” are listed.  The information in this part of the Visa Bulletin “reflects dates for filing visa applications within a timeframe justifying immediate action in the application process”.

Consular Processing/National Visa Center

If an immigrant visa applicant has a priority date that is earlier than the cut-off date listed in Section 4.B. or 5.B., the Visa Bulletin indicates that the US Department of State National Visa Center (NVC) will notify the applicant with detailed instructions to assemble and submit documents to the NVC.  The NVC accepts documents needed to process a greencard application abroad at a consular post of the US Department of State.

Adjustment of Status

The October 2015 Visa Bulletin also states that USCIS may use the “Dates for Filing Applications” chart (in lieu of the “Application Final Action Dates” chart in paragraphs 4.A. and 5.A.) to determine when an application for adjustment of status may be filed.  Adjustment applicants are directed to visit for more information.  This statement in the October 2015 Visa Bulletin is consistent with USCIS’s announcement today that each month it will “monitor the visa numbers and post the relevant DOS Visa Bulletin chart” on its website under “When to File”.  An intending greencard applicant can then use this information to determine when to file an adjustment application (Form I-485 Application for Adjustment of Status).  The “Dates for Filing Applications” chart may be used only when USCIS determines that additional immigrant visa numbers are available.  Otherwise, per USCIS guidance, the “Application Final Action Dates” chart must be used by intending Adjustment of Status applicants.


The dates in the “Dates for Filing Applications” sections of the Visa Bulletin are significantly further ahead of those listed in the September 2015 Visa Bulletin.  For example, in September 2015, the EB-2 India cut-off date was January 1, 2006.  In the October 2015 Visa Bulletin, “Dates for Filing Applications” chart, the cut-off date for EB-2 India is July 1, 2011.  The implications are clear.  Under the revised process, considerably more people should be eligible to file their visa applications at earlier dates than under the prior system.

As an aside, a “C” in the Dates for Filing Applications chart indicates that the category is “current”, i.e., that applications may be filed “regardless of the applicant’s priority date”.

Application Final Action Dates (Sections 4.A. and 5.A of Visa Bulletin)

In Sections 4.A. (Family-Sponsored Preference Cases) and 5.A. (Employment-Based Preference Cases), “Application Final Action Dates” are listed when the class is oversubscribed.  This may be specific to preference categories for a particular country or could affect all countries.

If a category is oversubscribed it means that “not all demand” for visas could be satisfied for that country/category.  These dates are now noted as the “dates when visas may finally be issued” as determined based on available data.

A “C” in the Application Final Action Dates chart indicates that the category is “current”, i.e., that visa numbers are authorized to be issued to all qualified applicants for that country/category.  In other words, there enough visas available to meet the overall demand.

A “U” in the Application Final Action Dates chart means that visa numbers are not authorized to be issued during that month for that country/category.

Keep in mind that visa numbers are only authorized for issuance to applicants whose priority date is earlier than the cut-off date listed in the Visa Bulletin.

* * * * *

The new processes, implemented as a result of President Obama’s November 2014 immigration executive action and the subsequent July 2015 report captioned “Modernizing and Streamlining Our Legal Immigration System for the 21st Century”, are expected to enable the Department of State to more accurately predict the visa demand and cut-off date information which it publishes in its monthly Visa Bulletin.  It is anticipated that these revisions will facilitate use of all available visa numbers per fiscal year and reduce monthly fluctuations in the “final action dates”.


Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at

Reminder:  Effective today, May 26, 2015, the Immigration Service will accept applications for employment authorization from “certain H-4 dependent spouses of H-1B nonimmigrants”. (Employment Authorization for Certain H-4 Dependent Spouses Web page).

An H-4 spouse may only apply for an EAD (employment authorization document) if the H-4’s H-1B spouse is pursuing US permanent residence.  More specifically, the H-4 spouse may not file an EAD application unless the H-1B spouse:

  • Is the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker, OR
  • Has H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (as amended by AC21).

Of course, H-4 status isn’t the only status that an H-1B spouse may hold.  USCIS had previously announced that where a non-H-4 spouse applies for H-4 status, it will first change the status of the qualifying spouse to H-4 and then adjudicate the application for employment authorization. This will add another step to the process and take more time.

Please see my prior post on this topic, “H-4 EAD Applications Accepted Beginning May 26, 2015: Are you that “certain spouse”?” for more information.


Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at


The Department of Homeland Security (“DHS”) is the parent agency of several sub-agencies including U.S. Citizenship and Immigration Services (“USCIS”); U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”).   These agencies are tasked with all of immigration-related affairs.  In December 2014,  DHS was the only agency that did not receive full-year funding in the federal spending bill, in the midst of the dispute over Obama’s executive actions related to immigration form.

DHS and its sub-agencies were facing a shutdown if a funding bill was not passed.  Fortunately, earlier this week, the U.S. House of Representatives passed a weeklong funding measure after the Senate passed a bill funding DHS through 2015.

Then last week, the House approved a 9 month funding bill for DHS, passing 257-167 (182 Democrats & 75 Republicans) which successfully beat the midnight Friday deadline for DHS funding to expire.

Those who voted against the funding did so in large part due to the lack of language to block Obama’s immigration policies. Back in November, Obama announced executive actions on immigration reform that would allow protections for undocumented foreign-born individuals who have children who are U.S. citizens and have lived in the U.S. for at least five years.  Specifically Obama’s plan was:

 We’re going to offer the following deal: If you’ve been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation.”

His plan caused a stir amongst dissenters of immigration reform, and almost resulted in a DHS shutdown, which was thankfully avoided.

What should an employer do?  The employee provides facially valid documents and completes Section 1 of the I-9 .  Time goes by… one fine day, the employee presents the employer with new documents, perhaps in a different name.  The employee discloses that the first set of documents were not valid, they were fakes, good fakes, but says that the new documents are real and legitimate.

This happens with some frequency and as Deferred Action becomes more prevalent, it will likely occur even more.  Recently,  the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL) that sheds some light on this question (January 8, 2015 letter from Alberto Ruisanchez, Deputy Special Counsel).

The USCIS M-274 I-9 Handbook gives the following guidance: “ …an employee may have been working under a false identity, has subsequently obtained a work authorized immigration status in his or her true identity, and wishes to regularize his or her employment records.  In that circumstance you should complete a new form I-9.  Write the original hire date in Section 2, and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation….the I-9 rules do not require termination of employment.”

The OSC could not identify any violation of the anti-discrimination law when: ” an employer consistently accepts documents  that employees choose to present that reasonably appear to be genuine and relate to the individual, regardless of whether an employee admits that the documents previously presented for employment eligibility verification were ‘not real’….nor…when an employer allows an employee to continue employment under (these) circumstances.”

So long as the employer does not reject valid work authorization documentation or terminate employees because of their citizenship, the employer is not likely to be violating the federal anti-discrimination laws.


Robert S. Whitehill is Chair of the Immigration Practice Group at Fox Rothschild LLP.  He may be reached at

There is bad news for those hoping to avail of expanded DACA eligibility.  You may recall that President Obama’s Immigration Accountability Executive Action (IAEA) set the stage for several million people to be eligible for DACA employment authorization.   USCIS had announced plans to begin accepting employment card applications from these newly eligible applicants beginning today.  On February 17, 2015, yesterday, a judge in South Texas issued a preliminary injunction which prevents (at least temporarily) the Immigration Service’s planned implementation of the DACA expansion.  For more about DACA expansion, see Robert Whitehill’s blog post at


Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP.  She may be reached at