Policy Update: President Obama Announces Executive Action on Immigration
Director of Policy and Advocacy
November 25, 2014
President Announces Deferred Action for Millions
On November 20, President Obama made a long-awaited announcement detailing what steps his administration will take to defer deportation for undocumented immigrants in the U.S. The announcement included other steps the administration is taking within its legal authority to mitigate problems with the immigration system that so far Congress has been unwilling to fix. Following are highlights of the actions the administration has announced.
Programs to Ease Family Separation
Deferred Action for Parental Accountability (DAPA). Under DAPA, parents of U.S. citizen or legal permanent resident children will be able to apply for deferral from deportation and work authorization for three years. Relief will be provided only to those who have resided in the U.S. for five years or more. To be eligible, individuals must have been present in the U.S. since January 1, 2010 (or earlier), pass a criminal and national security background check, pay taxes going forward, pay a fee, show that their child was born as of the announcement (November 20, 2014) and not fall into one of the administration’s enforcement priorities.
This program will take six months to get up and running, so the administration will not be accepting applications immediately. It could potentially help 4.1 million people.
Deferred Action for Childhood Arrivals (DACA). The DACA program will be expanded. DACA currently applies to persons who were brought to the U.S. illegally when they were children, and provides temporary protection from deportation and work authorization for two years. The age cap will be lifted (the program previously served those up to age 31). The cutoff date (the date by which a requester must have been in the U.S.) will be moved up from June 15, 2007, to January 1, 2010. Protection from deportation and work authorization will be granted for three years.
This program will take three months to get up and running. It may provide relief for approximately 270,000 people.
Family Unity Waiver. Ordinarily, an individual coming to the U.S. as an immigrant, when her immigrant visa is available, obtains the visa at a U.S. embassy or consulate in the home country. If that individual is already in the U.S. unlawfully, once she leaves the U.S., she becomes subject to a bar to reentry (for three or ten years, depending on the length of unlawful presence). A waiver can be obtained, but until March of 2013, the individual had to apply for the waiver after she departed the U.S. The individual would be separated from her family for weeks or months while the waiver was processed.
Beginning in March of 2013, the administration changed the process for administering the waiver of inadmissibility. Spouses, minor children and parents of U.S. citizens (and for whom an immigrant visa was available) can remain in the U.S. while the waiver is being processed, thus avoiding lengthy separation from their families. The process will be expanded to include the spouses and children of legal permanent residents, and to adult children of U.S. citizens and permanent residents. In addition, the government will draft new regulations governing the definition of extreme hardship an individual must show in order to qualify for the unlawful presence waiver.
Advance Parole. DHS will clarify that persons with a pending permanent resident application or who are in certain temporary statuses may obtain advance parole to travel outside the U.S. and return without triggering the three- and ten-year bar to reentry.
Military Parole in Place. A November 2013 USCIS memorandum authorizes parole in place (and thus ability to adjust status without leaving the U.S. and triggering the three- and ten-year bars to reentry) for spouses, children and parents of those serving in the military and of veterans. The program will be expanded to include spouses, children, and parents of U.S. citizens and green card holders who are trying to enlist in the military.
Changes Benefiting Workers and Employers
The president’s announcement included several proposed changes aimed at benefiting workers and employers. Most of these proposals will require the writing of new regulations.
Portable Work Authorization. Regulations will be issued to allow temporary high-skilled workers to change jobs while they wait for their pending immigrant visa to come available. Currently, workers with H-1B visas are tied to their sponsoring employer until they obtain their green card, a process that may take many years. The spouses of H-1B workers will also be able to obtain work authorization, if they have an approved permanent resident application.
Better Visa Allocation. The administration will establish an interagency working group to make additional recommendations areas for improvement and modernization in the immigration system. Currently, even though there is a lengthy backlog for permanent employment visas, process delays may cause some visas to go unallocated in any given year. The working group will examine how to ensure that all visas available under current quotas (set in 1990) are actually allocated.
Better Opportunities for Innovators, Researchers, and Founders. The administration will seek to expand the use of the national interest waiver for certain persons with advance degrees or exceptional ability to seek a green card without employer sponsorship. Additionally, the administration will use its “significant public benefit” parole authority for inventors, researchers, and founders of start-up enterprises who meet certain requirements.
Extending Opportunity for Certain Students of U.S. Institutions. The administration will revise regulations for the Optional Practical Training program, which currently allows students on F-1 visas to extend their stay in order to work in a relevant field of study. New regulations will seek to extend the period of stay and require strengthened ties between the program and degree-granting programs.
Intracompany Transferees. Regulations will clarify the meaning of “specialized knowledge” for purposes of granting admission with an L-1B visa program for intracompany transferees.
Protections for Employers with Employees Eligible for Deferred Action. Employers are protected from prosecution for currently employing undocumented workers if an individual needs employer documents to prove presence to apply for deferred action or if an employee receives deferred action and employers must fill out a new I-9 form.
Additional Actions Relating to Visas
The administration will also make changes in the U and T visa programs, for victims of crimes or human trafficking, to expand the list of crimes for which U Visas may be certified, and to allow the Wage and Hour Division of the Department of Labor to certify T visas.
Replacing the Secure Communities Program. The Secure Communities program will be discontinued and will be replaced with a Priority Enforcement Program. Under this program, ICE will make requests to local law enforcement agencies for notification of the pending release of an individual who falls within certain specified priorities contained in the new ICE Enforcement Priorities (see below), or if the individual clearly poses a risk to national security. The Priority Enforcement Program will continue to rely on fingerprint data submitted by local enforcement agencies during booking, but ICE will only request local enforcement agencies to hold an individual in special circumstances, such as when that person is a threat to national security.
In the cases where ICE requests an agency to detain an individual, it must specify that the individual is subject to a final order of removal, or there is sufficient probable cause to find that the individual is removable. (This stipulation is necessary to address the Fourth Amendment concerns that have been the subject of numerous lawsuits against local agencies holding individuals without charge.)
The memo on Secure Communities can be obtained here.
New Enforcement Priorities. The Department of Homeland Security has issued department-wide guidance on enforcement priorities, superseding the enforcement priorities issued by John Morton for ICE in 2011 and other prior memos. According to the new memo, the highest priority for removal are: 1) threats to national security, convicted felons, those convicted of gang-related crimes, and people newly apprehended at the border; 2) misdemeanants and new immigration violators; and 3) those issued a final order of removal on or after January 1, 2014. Within priority two, the “new immigration violators” are described as persons apprehended after illegally entering or re-entering the U.S. and who cannot establish that they have been continuously present since January 1, 2014. The memo also specifies that detention resources should follow the priority enforcement guidelines. The memo also directs the Office of Immigration Statistics to collect enforcement data that will show how well the priorities are being followed, and the data will be publicly released.
The memo can be obtained here.
Also released was a memo directing the start of an effort to recalibrate the workforce and personnel pay structure of ICE Enforcement and Removal Operations.
Immigration Court Reform. The Department of Justice will work with DHS to identify low priority cases and close them, thus reducing the backlog in the immigration courts, and more swiftly adjudicate higher priority cases.
Southern Border and Approaches Campaign. DHS released a memo directing additional measures in its Southern Border and Approaches Campaign Strategy that include the establishment of three Joint Task Forces that will incorporate elements of the Coast Guard, CBP, USCIS and ICE. The interagency tasks forces should facilitate information sharing and coordination among the agencies. No additional border patrol will be placed on the border, but DHS will continue the “surge” of resources placed on the border this summer in response to the influx of unaccompanied minors.
Naturalization and Integration
White House Task Force on New Americans. A Task Force on New Americans will be established to develop a federal immigrant integration strategy.
Naturalization Fees. USCIS will consider a partial fee waiver for those whose income is below 200% of the federal poverty level, but above the threshold for the current fee waiver (150% of poverty). This idea will be explored the next time the agency does a fee study. USCIS will start accepting credit cards as a form of payment for the naturalization fees by the end of next year.
Media Campaign. USCIS will launch a public awareness campaign about citizenship in the 10 states with 75% of the legal permanent resident population. In doing so, it will work with state and local governments and foreign embassies.
In addition to the links contained in this update, the administration has more information about these executive actions on various websites. You can find more information at the following links:
U.S. Citizenship and Immigration Services: http://www.uscis.gov/immigrationaction#4
Department of Homeland Security: http://www.dhs.gov/immigration-action?utm_source=hp_feature&utm_medium=web&utm_campaign=dhs_hp
Immigration and Customs Enforcement: http://www.ice.gov/immigrationaction
Department of Labor: http://www.dol.gov/dol/fact-sheet/immigration/
Regarding the legal justification for the executive actions, there is a lengthy legal memorandum from the Department of Justice here: http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf
In addition, there are some non-government websites that are dedicated to providing information about the executive actions.
Administrative Relief Resource Center: http://www.adminrelief.org/