New York Lawyer's Legal Updates

Known Unknowns of DAPA

Author: New York DAPA lawyer Alena Shautsova

President Obama’s administration took a new, important step towards legalization of millions of undocumented immigrants. Starting Mary, 2015, a beneficiary of DAPA will be able to obtain an employment authorization, and likely, an advance parole document which will allow a person to legally travel outside the US and return.

The Obama’s administration announced that a person will be able to apply for DAPA if

  • he or she has resided in the U.S. since January 1, 2010;
  • had on November 20, 2014 a U.S. citizen or permanent resident son or daughter;
  • and is not an enforcement priority.

This new form relief is helpful to those whose U.S. citizen children are under the age of 21 or those who cannot demonstrate extreme hardship needed for an immigration waiver in case a son or daughter are 21 and older. It is so, because a U.S. citizen child who turned 21 can petition for parents’ permanent resident status. However, if a parent entered the country illegally, such a parent will need to obtain an extreme hardship waiver before receiving permanent residency in the United Sates. The advance parole way does not cure an issue of fraud or misrepresentation.

It is important to understand that DAPA is not an amnesty and does not provide a path to citizenship. It is a temporary relief that will temporarily shield a person from removal and allow to work legally in the U.S. One potential long term benefit DAPA may bring is a travel permit. Currently, the majority of undocumented persons with U.S. citizen children cannot obtain permanent residency while in the U.S. due to entry without inspection or admission, and the only way such individuals can obtain a “green card” is if they qualify for an extreme hardship waiver and obtain an Immigrant visa from a consulate abroad. However, once a person travels using an advance parole document or a travel permit and returns to the U.S., he or she cures the illegal entry problem and will no longer require a waiver if there is an immediate relative (a U.S. citizen spouse or child) who can file a petition for this person. Please note that there is an exception for relatives of current or former military members: they can qualify for parole in place and obtain permanent residency without a waiver.

One can prepare for DAPA: collect records that demonstrate residency in the U.S. from January 1, 2010: copies of pay stubs, mortgage payments, store loyalty program statements, social media accounts print outs, copies of rent payments, etc. Also, it would be helpful to verify criminal history status, as well as obtain basic identification documents.

Finally, there are “unknowns” of DAPA that at this time, practitioners hope will be resolved in favor of the applicants:

a). A question of step children: will a person with stepparent-stepchild relationship be able to qualify for DAPA? Step parents should be able to apply for DAPA if they married their spouses before the child’s 18 birthday and developed a stepparent/ stepchild relationship.

b). What will happen to those who are in removal proceedings now or will be placed in removal proceedings after DAPA is announced?

c). Will the relief eventually lead to a permanent residence status?

While currently, there are no clear answers to those questions, it is known that the application forms for DAPA should be available starting May, 2015.

Submit your questions by calling 917-885-2261 or visiting www.shautsova.com

03 February 2015
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