DAPA 0, H-4 EAD 1

In two separate opinions authored by separate courts, the judiciary allowed H-4 EAD applications to proceed, and continued to hold back DAPA hopefuls from receiving EADs (Employment Authorization Documents, work permits basically).  

DAPA and expanded DACA: The State of Texas and other states sued DHS over Deferred Action for Parents of Americans (DAPA) and an expansion of the DACA program to remove the age cap and issue 3 year EADs, arguing the State of Texas would lose money by issuing driver's licenses to those who received DAPA and expanded DACA.  The District Court in Texas blocked the program by issuing a court order (an injunction), and on May 26, 2015, the Fifth Circuit Court of Appeals in a 2 to 1 decision upheld the injunction.  So for now, at least until the Supreme Court takes up the case, DAPA and expanded DACA continue to be on hold.

H-4 EADs: A group of technology workers who used to work for Southern California Edison sued DHS over the regulations allowing work permits for H-4 dependent spouses of those H-1B workers who have had an immigrant petition approved on their behalf or who are eligible for extensions beyond the sixth year of H-1B status due to the initiation under certain circumstances of a green card process.  On May 24, 2015, the District Court in the District of Columbia denied the tech workers' request to issue an injunction like the one in the DAPA case.  So H-4 EAD applications will proceed.  Today is the first day allowed for H-4 EAD applications.  

HR Strategies to Attract and Retain Global Talent

Join Speakers Brent Renison and Tifani Parrilli on the morning of June 19, 2015 in Portland for an informative discussion of visa options! We submitted the program for SHRM and HRCI credits (1 PDC for SHRM and 1 Global and/or HR General for HRCI).  This one hour presentation is intended for human resources professionals who manage recruitment and are responsible for administration of visa sponsorship programs.  Topics covered will include intracompany transfers, specialty occupation work visas, extraordinary ability categories, and country specific visa categories.  Some familiarity with visa processes is helpful but not necessary.  For more information see our SEMINARS page.

Illegal Immigration - Why Not Just Come Legally

I am asked frequently why people who immigrate illegally don't just come here legally.  That's a good question, and it deserves a good answer.

Estimates from the U.S. Department of Homeland Security, the Pew Hispanic Research Center and USCIS show that 59% of all illegal immigration consists of people from Mexico.  Yet State Department Statistics show that only 15.6% of Mexican citizens who apply for business and tourist visas are refused.  Citizens of France, a more developed country in comparison, have an even higher rate of denial at 18.8%.  So what gives?

French citizens are allowed visa free travel, unless they are ineligible for the visa waiver program for some reason such as criminal convictions.  That's why the only people who apply for visitor visas from France, for example, usually have some kind of special issue that needs reviewing.  Mexican citizens, on the other hand, do not enjoy visa free travel, and are required to obtain a visa first from the State Department before coming even for a day trip to go sightseeing.  

Visitor status (technically, the B-1/B-2 visa valid for business (B-1) or tourism (B-2)) does not permit work.  It allows meetings, attending conventions, and going to Disneyland, but not working there.  Obtaining a visitor visa also requires the person to rebut the presumption of immigrant intent (see INA 214(b)).  Yes, the United States presumes every visitor to be an immigrant unless the person can show that they are not intending to immigrate (stay here permanently), and since a visitor status is inherently a nonimmigrant classification, the two don't mix.  If you can't overcome the presumption, you are denied.  In other words, don't bother applying if you're poor and don't have any assets.

Because visitor status does not permit work, and because even obtaining a visitor visa requires the person show they are not likely to immigrate to the country, the people who apply for visitor status from developing countries more likely to be wealthy business people with extensive property holdings, and thus have the ability to show they are not likely to immigrate.

A comprehensive treatment of the visa categories which allow work in the United States, or allow a person to immigrate to the U.S., is impossible in a short blog post such as this.  But suffice it to say that the United States does not have very generous work authorization schemes on the books.  The U.S. caps professional workers (for jobs requiring a bachelor's degree in a specific field) at 85,000 nationwide per year, and just received 233,000 applications for those limited numbers in a 5 day filing window April 2015.  The only real visa for non-professional work is the H-2B program, capped at 66,000 per year, which is designed for seasonal, peak load, one time occurrence, or intermittent work.  It is used by some summer agricultural employers, and some winter ski resorts. Employers must engage in a complex recruitment effort to make sure U.S. workers have a chance to apply first.  Annual quota number and limitations on the program itself make it unusable for most employers.  

If you want to immigrate to the U.S., as opposed to just coming here temporarily, you need employer sponsorship or family sponsorship.  Most categories (with the exception of positions requiring a master's degree or a bachelor's degree plus 5 years of progressive experience) take many, many years to result in permanent resident status (the green card).  Even with a parent who is a U.S. citizen, an adult child of a U.S. citizen from Mexico will wait 20 or 30 years or more to immigrate, as the State Department is processing those with filing dates from the mid 90's and they inch the dates forward a few weeks every month, doubling the waiting time.

The fact is, we have a 1980's style immigration system that was founded in 1952 at the height of McCarthyism, and last updated to increase visa numbers significantly in 1990, when Tim Berners-Lee created the first web server which would serve as the foundation of something called the "world wide web" released in 1991.  We have been living in the 1980's since that time, and the significant immigration law changes in 1996 only created a more difficult path to legalization for immigrants than at any time since the Alien & Sedition Acts of 1798.  Income inequality in Mexico and the enormous wage gap between U.S. and Mexican wages creates an incentive for Mexican citizens to seek work in the United States despite the lack of a working visa system.  Many who come to the United States seeking work do so because of poor credit markets for entrepreneurs who seek to expand their business operations in Mexico.  Working for a few years in the United States can enable a business owner to hire more people, gain needed supplies, or expand operations.  

This blog does not advocate for illegal immigration.  Congress advocates for illegal immigration every day it fails to pass bi-partisan immigration reform.

HR Certification Institute Approved Provider Parrilli Renison

We are pleased to announce that Parrilli Renison has been listed by the HR Certification Institute as an Approved Provider, which entitles us to submit our HR Seminars to HRCI for pre-approval of PHR, SPHR and GPHR recertification credits.  We have submitted an upcoming June 19 seminar entitled "HR Strategies to Attract and Retain Global Talent" to HRCI for review.  Please visit our SEMINAR listings for more information.

233,000 H-1B Filings for 85,000 Slots in 5 days

UPDATE: April 14, 2015 - USCIS has announced that premium processing of H-1B petitions selected in the lottery will begin on April 27, 2015.

Employers' chances of attracting and retaining global talent just got worse.  USCIS has received 233,000 filings for only 85,000 H-1B slots this entire year, all received within a 5 day window.  With close to three times more cases filed than Congress allows, chances of obtaining an H-1B work visa this year are about 1 in 3.  That means that a majority of those international students who obtain U.S. degrees and a job offer will have to leave the country.

USCIS will now undertake a random lottery to determine which of the filings will be accepted and which will be rejected.  The agency will begin premium processing of the lottery winners no later than May 11, 2015, according to the press release.

How does your Congressperson feel about the cap?  Ask them.  Go to the House of Representatives website and look up your Representative by zip code.  Let them know what you think about the 65,000 regular cap, which was set back in 1990, and the 20,000 U.S. Master's degree exception to the cap set over a decade ago.

Some things to know about the H-1B cap are that the quota does not apply to someone who already has an H-1B, or for positions with U.S. higher education institutions or those non-profits affiliated with them, and doesn't apply to non-profit and government research organizations.  

Employers Must File Amended H-1B Petitions for New Work Locations

Today the Administrative Appeals Office (AAO) of the USCIS ruled in a published opinion that employers must file amended I-129 petitions for H-1B workers who move or add worksite locations, overturning an earlier policy of permitting just a Labor Condition Application (LCA) to be certified and posted in the new location before the employee started work there.  This new decision, Matter of SIMEIO Solutions LLC, 26 I&N Dec. 542 (AAO 2015), will impose additional expense on employers, and require a more extensive filing (with fee) than just an LCA posting when employees are sent to a new worksite location not listed on the last H-1B filing with USCIS.

The decision, however, does not change the rules regarding peripatetic workers, where the nature and duration of the workers job functions require short-time presence at different locations, or H-1B workers who spend most work time at one location but occasionally travel for short periods to work at other locations.  Examples of non-worksite location situations not requiring an LCA posting include a computer engineer sent out to customer locations to troubleshoot complaints, a sales representative making calls on prospective or established customers within a home office sales territory, a manager monitoring the performance of out-stationed employees, an auditor providing advice or conducting reviews at customer facilities, a physical therapist providing services to patients in their homes within the area of employment, or an individual conducting research at a library or taking a customer to lunch.  Worksite locations requiring an LCA posting, and under the new policy a new I-129 petition with fee, include a computer engineer working on projects at different locations for weeks or months at a time, a sales representative assigned on a continuing basis in an area away from his or her home office, an auditor who works for extended periods at the customer's offices, a physical therapist who fills in for full-time employees of health care facilities for extended periods, or a physical therapist who works for a contractor whose business is to provide staffing on an as needed basis at hospitals, nursing homes, or clinics.  To be considered peripatetic work or short-term travel, and thus not a worksite requiring an LCA, the periods of time spent at a particular location must be short-term and not excessive, which is defined in the regulations as not exceeding five consecutive workdays for any one visit by a peripatetic worker or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations.

The decision also leaves in place short term placement rules in the regulations which do not require an LCA posting if the placement within a one year period is no more than 30 days in certain circumstances or 60 days in other circumstances.  See 20 CFR 655.735.  The decision also leaves untouched the provision of 20 CFR 655.734(a)(2) which provides that where the employer places an H–1B worker at one or more worksites not contemplated at the time of filing the LCA, but which are within the area of intended employment listed on the LCA, the employer is required only to post electronic or hard-copy notice(s) at such worksite(s), on or before the date the H–1B worker begins work.  Thus, moves within a Metropolitan Statistical Area covered by an existing LCA that was filed with the worker's H-1B would require just the LCA notice requirements be met and not an amended I-129 petition filing.  Whether an LCA or an amended petition is required for a workplace move or travel is a determination that should be undertaken only with the advice of competent counsel.

Mississippi Governor Loses Lawsuit Against DACA

A challenge by the Republican Governor of the State of Mississippi and some agents of Immigration and Customs Enforcement (ICE) to the DACA program was dismissed by the Fifth Circuit Court of Appeals in a decision filed today.  The Fifth Circuit ruled that the lawsuit could not prove injury to either Mississippi or ICE by implementation of the DACA program, and that it had to be dismissed because federal courts lack jurisdiction to hear cases that aren't controversies, which requires something at stake in the case.  The Fifth Circuit Court of Appeals is the same court as the one which is about to hear arguments on the President's DAPA program, which was temporarily blocked by a federal district court judge in Texas.  The panel of judges on the DAPA case is not likely to be the same.  It is unclear to what extend the decision today will impact the decision on the DAPA case, but the issues are very similar.  A brief report on the case has just appeared on The Hill Blog.

H-4 EAD Rule - Apply May 26

Following President Obama's November 20 announcement on executive improvements to the immigration system, a regulation has been issued to allow work permit applications for H-4 spouses who are married to H-1B workers who have taken steps to become permanent residents.

When does the rule take effect?  May 26, 2015 is the earliest that an application can be submitted.  Applications filed before that date will not be accepted.

Who can apply?  Not all H-4 spouses can apply, and this rule does not apply to H-4 sons and daughters.  It only applies to H-4 dependent spouses of H-1B nonimmigrants who: 

• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; OR 
• Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

How do you apply?  Form I-765 with fee must be filed on or after May 26, 2015, along with proof of eligibility.  If the H-1B spouse has an approved I-140, then a copy of the I-797 approval notice should be sufficient, together with a marriage certificate and documentation of the H-1B employee's status.  If the H-1B spouse does not yet have an I-140 approved, but has received an extension beyond the six-year limit on H-1B status because of having a PERM Labor Certification application filed at least a year previously, then more extensive documentation is likely to be required, such as a copy of the H-1B filing requesting the AC21 extension.  The Form I-765 is being modified to ask for specific information relating H-4 work authorization and attention should be paid to the most recent version of the I-765 Form on the USCIS website.

What kind of work authorization is issued?  Upon approval of an I-765, an Employment Authorization Document (EAD), also called an Employment Authorization Card (Form I-766) is sent in the mail to the address listed on the application.  This is proof of work authorization for I-9 purposes.  The EAD can be used to apply for a Social Security Number.  A copy of the EAD card is shown below.

Can you file concurrently with a change of status?  Yes, the final rule makes it clear that someone who is not already in H-4 status, or who is applying to extend H-4 status, can file an I-539 application to change or extend status together with the I-765 application.  That way, the EAD application may be able to be approved faster than if a change of status or extension of status was first filed and adjudicated, and then an I-765 filed later.  

How early can I file to renew?  Usually an I-765 can be filed up to 120 days before expiration, but in cases where an I-539 extension of status is filed together (concurrently) with the I-765, USCIS will allow the application to be filed up to 180 days before the expiration of the EAD, to match the rules for extension of stay.  No applications, however, will be accepted before May 26, 2015.

How long does it take?  Typically, I-765 applications for work authorization take between 60-90 days.  Regulations require USCIS to act within 90 days on these types of applications, but that does not always happen.  The final rule notes, however, that when filing for a change of status to H-4 from some other status concurrently with the I-765, the 90 day period will not begin until the H-4 application is adjudicated.  This is probably to protect USCIS from a rush of applications that it cannot process in time.  In usual practice, an I-765 filed concurrently with an I-539 (such as in the case of an L-2 or E-2 spouse) is typically approved shortly after the change of status or extension of status is granted.  

How long will it be valid for?  The final regulation notes that the EAD card will be issued for the validity of the person's H-4 status.  So if the H-4 applicant only has 6 months left on H-4 status at the time the application is adjudicated, the EAD will only be valid for that 6 months.  If a new three year H-4 period is being applied for, or if the person already has three years in H-4 status left, then the EAD will be issued valid through the end of the person's H-4 status as presently granted.  Thus, it pays to be attentive to how much time is left on a person's H-4 status before applying for an EAD under this provision.

Sample EAD Card, Form I-766, which is the document issued when applying on I-765.

Turn Self In for Deportation Alternative to DAPA?

Original February 23, 2015 post updated with May 26, 2015 Fifth Circuit ruling:  A Texas judge ordered a temporary hold on #immigrationaction Deferred Action for Parents of Americans (DAPA).  The Feds have appealed, but they just lost in the Fifth Circuit.  Now that all but the nation's highest court has halted the DAPA program, the question remains: Is DAPA the only way to enact smart enforcement?  Arguably, the White House has another potential option to defer deportation and grant work permission for low priority undocumented immigrants - a Turn Self In for Deportation program.

How would that work?  The answer lies in the laws that Congress passed in 1996.  If a person in the United States without authorization can show 1) 10 years of continuous physical presence in the U.S. (with allowances for breaks of 90 days or less if totaling 180 days or less), 2) good moral character, 3) a lack of conviction for certain crimes, and 4) establishes that their removal would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident, then that person can apply for a green card from an immigration judge, and have their deportation cancelled.  The law is 8 U.S.C. 1229(b) and it is called "Cancellation of Removal."  Yep, Congress said that if you have been here a long time and deportation would work a hardship on your kids, then you should be able to stay here as a lawful permanent resident.  That's the law.

It is probably no coincidence, therefore, that the DAPA program was established for otherwise law abiding individuals who have been here a number of years and are parents of American citizens.  If the government were to put all the estimated 4 million individuals who might qualify for DAPA into removal proceedings, a large portion of them would likely qualify for Cancellation of Removal, and would be entitled to a trial where they could prove the elements of the Cancellation of Removal claim.  This would completely cripple the removal system and prevent the removal of more dangerous individuals.  According to a Wall Street Journal Article, removal hearings are now being set 5 years into the future due to an already long backlog of cases waiting to be heard.  With 230 immigration judges around the country already handling 375,000 cases per year, the system is at the absolute limit. Add 4 million more to the list of pending cases, including mostly those with Cancellation of Removal claims (requiring more court time to handle than many other cases), and hearing dates could be set not 5 years away, but 50 or 100 years in the future.  Add to that the annual limit on 4,000 grants of Cancellation of Removal, and meritorious cases would be pending for 1,000 years.

So how would a Turn Self In for Deportation program work in place of DAPA?  The Obama Administration could allow the portion of DAPA eligible individuals who had the required 10 years in the country to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application, then Administratively Close their case so it gets out of the streamline of pending cases.  In the old days, the predecessor to the NTA, the Order to Show Cause (OSC) could be requested by walking an out-of-status client into investigations and having them written up.  This was done to seek relief before an immigration judge.  At some point the agency decided to limit the issuance of charging documents to cases they thought they could win.  But DHS could certainly allow the old process to operate again, and could certainly direct the Office of Chief Counsel to join in motions to Administratively Close all cases in which the person was eligible for Cancellation of Removal and who also requested such administrative closure.  This process would enable the individual to apply for a work permit, just the same result as if they had applied for DAPA.  By allowing the cases to be Administratively Closed, the system would not be crippled, and removal proceedings involving individuals with serious criminal convictions could proceed.  

So why don't more people just Turn Self In for Deportation?  That is because Immigration and Customs Enforcement (ICE) has no process to allow for this.  That's right - unless you are a priority for removal, ICE will not usually place a person in removal proceedings by issuing an NTA unless that person is a priority for removal, which at this time involves only people apprehended at the border or those arrested for crimes, and not all those otherwise law abiding individuals who may have Cancellation of Removal.  Some individuals have filed asylum applications in order to be placed in removal proceedings, because denial of asylum leads automatically to an NTA being issued and the individual being placed in removal.  The NTA filing, in turn, allows them to apply for Cancellation of Removal and a work permit, but the process is not without risk outside of an organized system as reported by the New York Daily News.  So, because of the risk of deportation, and the fact that no Turn Self In for Deportation program exists, few of the otherwise law abiding 4 million are in removal proceedings, and cannot therefore apply for Cancellation of Removal.  These are the truly "undocumented" because they are eligible for legalization but cannot apply for it unless they are in removal proceedings, and they aren't likely to get there because they are not committing crimes.

A Turn Self In (TSI) for Deportation program would also be even more shielded from judicial review than the DAPA program, because Congress has enacted laws (namely 8 U.S.C. 1252(g)) to completely insulate the decision to commence removal proceedings against someone from judicial review.  When this post was originally drafted in February, a few scholars commented that the TSI program would be subject to the same problems as the DAPA program in terms of jurisdiction to review in the courts.  Not so, in my opinion.  As the Fifth Circuit held today, "DAPA amounts to the Secretary's decision - at least temporarily - not to enforce the immigration laws as to a class of what he deems to be low priority aliens.  If that were all DAPA involved, we would have a different case."  Slip Op., p. 23-24.  The Court also held, "Unlike the claim in AAADC, the states' procedural claim does not involve a challenge to the Secretary's decision to 'decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,' nor does deferred action pursuant to DAPA mean merely that 'no action will thereafter be taken to proceed against an apparently deportable alien.'"  Slip Op., p. 25-26.  The statute, 8 U.S.C. 1252(g), states that "...no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General [now DHS Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act."  Because issuing an NTA to someone is an act to commence proceedings, it is immune from judicial review, unlike DAPA.  The decision to join in a motion to administratively close a case is arguably not within the jurisdictional protections of 1252(g), but if the agency were to have issued and filed several million NTAs in immigration court, it would be hard to imagine a court which would not allow the officials in charge of managing their dockets the discretion to join in admin closure motions to enable the orderly prioritization of the removal process.  Also, the issuance of work permits is a separate process from the issuance of the NTA and the person's own application before the court for cancellation.  So DHS isn't really responsible for that, it is just part of how the system already works.  How could a court find any reason to stop a process that Congress itself enacted?

Now that the DAPA program has not been placed back online in quick fashion through the courts,  the Obama Administration could consider allowing people to turn themselves in and issuing NTAs to several million of the DAPA eligible group who have been here at least 10 years.  As stated above, the commencement of removal proceedings is entirely beyond the jurisdiction of the courts to interfere with.  Upon filing all those millions of NTAs with the Immigration Court, the Administration could then decide to implement an orderly policy to Administratively Close them (since keeping them in the system would crash it) and allow the system that Congress established to issue the group work permits.  

A far better solution, however, would be for lawmakers to recognize that deporting parents of American citizens who have lived here for many years is not a practical strategy, setting aside for a moment even the humanitarian concerns, and work together in bipartisan fashion to come up with a logical and workable immigration system that takes this group out of the cross hairs of the deportation system.  Until that time comes, however, the Administration must come up with strategies to enforce the immigration laws in a smart way, including separating out those who should not be taking up our limited removal system resources by allowing them to provide proof of their low priority status.  In order to encourage people to come out of the shadows and become pre-identified as low priority for removal, the Administration must give some benefit - work authorization - for such a program to work.  

Whether the Administration wins the battle to implement DAPA at the Supreme Court, or must turn to something such as a Turn Self In for Deportation program, the parents of Americans with lengthy U.S. residence should be allowed the decision to document themselves as low priority by requesting an NTA, and after filing a cancellation application, be issued work permits.  

DAPA and Expanded DACA Blocked

UPDATE! The Supreme Court upheld the blocking of DAPA - read about the TSI ALTERNATIVE TO DAPA HERE.

On President's Day, February 16, 2015, federal judge Andrew S. Hanen issued a temporary Order in favor of the State of Texas, temporarily blocking the DAPA program and also blocking the expansion of DACA.  

What this means: For now, the judge's order blocks USCIS from "implementing any and all aspects or phases" of both the DAPA program, set to go into place by May 18, 2015, and also the expansion of the DACA program, which was set to go into effect February 18, 2015, and which would eliminate the age cap, move the residence date up to January 1, 2010, and extend work authorization from two up to three years.  That means, for now, the USCIS is prevented from putting any DAPA program in place, and also prevented from changing anything about the DACA program as it currently exists.  It does not affect the DACA program that has already been in place since 2012, so anyone who qualifies for the DACA program as currently in place is not affected by this court order.

Why this happened:  The Republican Texas Governor Greg Abbott filed a lawsuit against President Obama, seeking to stop DAPA and the expansion of DACA, claiming among other things that it would cost the State of Texas money to issue driver's licenses to DAPA and DACA recipients because the State charges less than the actual cost of the driver's licenses.  The Texas Governor was joined in the lawsuit by Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wisconsin, Michigan, Mississippi, Maine, and North Carolina.  The lawsuit was assigned to Andrew S. Hanen, a judge in the Southern District of Texas, where the lawsuit was filed.  Judge Hanen was appointed in 2002 by President George W. Bush.  

What will happen next: The order is preliminary and temporary, until the judge decides the case on the merits - in other words, until the judge has more time to hear all the arguments from each party and makes a final ruling.  The Obama administration has announced that it will appeal the temporary decision.  Many legal scholars hold the opinion that Judge Hanen's order will not be upheld (supported) by higher courts.  For now, however, the DACA program cannot expand - the age cap stays in place, the two year cards instead of three years stay in place, and the June 15, 2007 residence date stays in place instead of January 1, 2010.  Also, for now, the DAPA program is on hold.  The DACA program that was put in place in June 2012, however, is still in place and is not affected.  Individuals who are eligible for DACA and renewals of DACA under the 2012 program can continue to apply and receive benefits.  No benefits have been taken away.

Who supported the President's DAPA and DACA programs: The States of Washington, California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont and the District of Columbia filed amicus briefs in support of President Obama's programs.  The Mayors of New York City and Los Angeles, along with 31 other mayors also supported with a brief.

What could President Obama do: The President has already decided to appeal Judge Hanen's order.  The higher court, the Fifth Circuit Court of Appeal, and ultimately the Supreme Court, could decide the case differently.  

The President could also decide to use other methods to achieve the same purpose.  For example, the President could allow people who have been in the country for at least 10 years, and are the parent of an American citizen, to "turn themselves in" to be placed in deportation proceedings (now called removal proceedings), which would allow them to apply for "Cancellation of Removal" and get work permits while they await their hearing in front of an immigration judge.  Cancellation of removal is a form of relief an immigration judge can grant, if the person has been here 10 years, does not have certain criminal convictions and has been a person of good moral character, and establishes that deportation would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident.  If the judge finds those factors, the judge can adjust the status of the person to lawful permanent resident - a green card.  There are only 4,000 slots available each year, and if a judge decides to grant relief but there are no numbers, the case is just held until numbers are available.  If several million people were suddenly placed in removal proceedings as a result of a turn self in program, it would take many years, perhaps decades, for cases to be heard.  In the mean time, applicants for Cancellation of Removal would be able to apply for work permits.  Of course, taking any action such as turning oneself in for removal proceedings carries risk of deportation or prosecution, and should be undertaken only after receiving the advice of competent immigration counsel.  But this one example does show how there are other ways in which the President can accomplish the goals of DAPA without using deferred action.

Accion Diferida para Padres de familia de Ciudadanos y Residentes permamentes

El Presidente tomó medidas para dar alivio temporal a las familias y a las empresas. Aquí están algunas partes importantes de su acción: 
• Accion Diferida para Padres de familia (DAP) de Ciudadanos Americanos y Residentes Legales Permanentes que han estado en los EE.UU. desde el 1ro de enero del 2010. Esto significa permisos de trabajo y la protección para no ser deportado.
• Expansión de la Accion Diferida para Llegadas en la Infancia (DACA) quitando el límite de edad y moviendo la fecha en la que el solicitante le necesario estar en el país a partir del 15 de junio de 2007, hoy sera apartir del 1ro de Enero del 2010. La DAP y DACA también se incrementara a un período de tres años.