What Does Obama’s Executive Action on Immigration Really Mean?
On November 20, 2014, President Obama announced a series of administrative changes to the immigration system. The broad changes affect the unauthorized population, the legal immigration system, border security and interior enforcement. These actions will be carried out via series of memoranda from various cabinet secretaries that oversee different parts of the immigration system. The memos released so far can be found on the websites for the following departments or agencies: the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (UISCIS) and the Department of Labor (DOL).
In summary, the proposed changes include:
✦ *3-year deferred action (protection from deportation) program created for unauthorized parents of U.S. citizen or permanent resident sons or daughters (of any age, not just children). DACA extended to DREAMers of any age (eliminates previous max age of 30).
✦ *Parole-in-place for unauthorized family of persons seeking to serve in the military.
✦ *Provisional waiver program expanded to unauthorized spouses and children of lawful permanent residents already in line for a green card.
✦ *H-1B spouses will be allowed to work if the principal has an approved green card petition.
✦ *Extended optional practical training (OPT) for STEM foreign students and a new parole status for entrepreneurs to remain in the country.
✦ *Expanded avenues for inventors and entrepreneurs to apply for green cards without employer petition.
✦ *Calls for significant modernization of immigrant visa processing, including making sure all authorized visas are issued.
✦ *New strategic border security planning, revamped deportation priorities and clarification of exercising prosecutorial discretion.
✦ *Replacing the Secure Communities program of information sharing on arrestees with a more targeting program aligned with the new enforcement priorities.
While these changes impact many parts of the immigration system, they do not represent permanent fixes. For example:
*The Deferred Action programs do not provide a temporary or permanent legal status under the immigration laws. Deferred Action cannot be converted to any legal visa, temporary or green card, nor does it provide any path to citizenship. It can be revoked at any time.
*The changes to the green card (immigrant visa) provisions do not allow for any more immigrants than allowed under current statutory caps.
*Changes to the parole and provisional waiver programs apply to persons who are already otherwise qualified for green cards under the existing system.
*Changes to deportation priorities are unlikely to result in major changes in the actual deportations each year.
Below is additional detail on the administrative changes announced.
The largest provisions of President Obama’s actions allow two groups of unauthorized immigrants to apply for deferred action that would protect them from deportation. To be eligible, individuals must meet specified eligibility criteria. Deferred action is not technically a legal status under immigration law. As it has been used by various administrations, it is an “act of prosecutorial discretion that suspends legal action against an individual or group for a specific time period.”1
The president announced an expansion of the Deferred Action for Childhoods Arrivals (DACA) program.
Pre-administrative changes. Established in 2012, DACA currently allows for renewable, temporary (two-year period) relief from deportation or removal and work authorization to certain unauthorized immigrants who arrived as children (“Dreamers”). Currently, to apply, individuals must have arrived before age 16, be under the age of 31, have lived in the country since 2007, never been convicted of a serious crime and graduated from high school or be currently enrolled in high school or college.
Post-administrative changes. The expanded program would allow Dreamers of any age to apply and extend the period of protection to three years. It also adjusts the date-of-entry requirement from June 15, 2007 to January 1, 2010. These changes could expand the number of Dreamers eligible by 235,000 to 290,000.
The executive actions also create a deferred action program for unauthorized immigrants whose sons or daughters (of any age, not just children) are U.S. citizens or lawful permanent residents (LPR).
Post-administrative changes. The parents must have no serious criminal record and have lived in the United States for at least 5 years, arriving before January 1, 2010. (For context, a recent Pew study estimated that 94 percent of unauthorized immigrant adults who live with a U.S.-born child have been in the U.S. for at least 5 years.) Applicants for the three-year status will have to pass background checks and pay an application fee of $465. They will also be able to apply for work authorization. About 3.9 million unauthorized immigrants may be eligible for deferred action under this new program. It is worth noting that this program does not allow parents of DACA recipients to apply. According to the administration, that would not have been permissible under its executive authority.
Expanding parole-in-place for military families
Pre-administrative changes. Under a policy issued last November by DHS, unauthorized family members of persons serving in the U.S. Armed Forces (or veterans) are eligible for parole-in-place—another form of temporary protection.
Post-administrative changes. The announcement last week would expand the scope of parole-in-place to include family members of U.S. citizens and LPRs who seek to enlist in the U.S. Armed Forces but are not yet active members. The administration also announced that it will consider deferred action for family members of active or enlisting military who are overstays (parole-in-place only applies to unlawful entry).
Expansion of Provisional Waiver Program
Pre-administrative changes. Current law requires unauthorized immigrants who have been sponsored for LPR status to leave the United States and be interviewed abroad at a U.S. consulate to obtain their green card. However, if that individual is found to have been unlawfully present in the United States for more than 6 months, he or she will be barred from reentering the country for 3 years (or for 10 years if unlawful presence exceeded 12 months). This is known as the 3- and 10-year bar. A waiver is available if the applicant can demonstrate that this absence imposes an “extreme hardship.”
Before 2013, unauthorized persons could only apply for the waiver after departing, so many did not know whether they would receive the waiver and be able to return. In 2013, DHS began allowing unauthorized spouses and children of U.S. citizens to apply before they departed.
Post-administrative changes. This new executive action would extend that ability to unauthorized spouses and children of LPRs as well. Notably, USCIS pointed out that “there may be instances when the qualifying relative is not the petitioner.” This may imply that the waiver will also be available to unauthorized immigrants with U.S. relatives who qualify for employment-based visas.
Limitations of these actions
Though deferred action (and parole) grants temporary work authorization and protection from deportation, it does not allow anyone to apply for legal residence or citizenship. Deferred action is an act of administrative discretion and can be revoked at any time, allowing for deportation. Immigrants covered by the new protections will also not be eligible for federal benefits such food stamps or health care subsidies through the Affordable Care Act.
Further, although these programs seem to target a large number of unauthorized immigrants, not all eligible individuals will apply. For example, in the two years since the DACA program began, about 675,000 individuals have submitted initial applications—between 40 percent and 70 percent of the total eligible population, depending on the estimate.
There are many reasons some may not apply, including application costs or a lack of information about the program. The fear of exposing oneself only to be rejected might also keep many unauthorized immigrants who have already been living in the country for many years from coming forward, particularly since executive actions may be overturned by a future administration.
Legal Immigration System
President Obama’s executive actions also called on USCIS and other agencies to make several reforms to “modernize” the current legal visa system:
Pre-administrative changes. Currently, spouses of H-1B non-immigrant workers are not allowed to work while in the United States. This provision has been criticized by businesses and some immigrant groups on the basis that similar non-immigrant work visas (e.g. L visas) allow spouses to apply for a work permit.
Post-administrative changes. DHS will finalize a rule it proposed earlier this year to grant work authorization to spouses of H-1B workers who have been approved for LPR status (green card) through their employer but are waiting on a visa to become available.
Extended OPT for foreign students
One DHS memo calls on USCIS to extend the time that foreign students in the United States on F student visas have for “optional practical training” (OPT).
Pre-administrative changes. OPT currently allows students to remain in the country for 12 additional months after graduation while working in a field relevant to their degree. Students in science, technology, engineering and math (STEM) fields are eligible for 29 months of OPT.
Post-administrative changes. DHS is directing USCIS to expand the degree programs eligible for OPT and extend the time period for foreign STEM students and graduates.
Expanding avenues for inventors, researchers and entrepreneurs
Pre-administrative changes. Under the current EB-2 employment based green-card category, certain individuals may apply for a green card without an employer (1) if they have an advanced degree or possess “exceptional ability” in their field and (2) their admission would be in the “national interest.”
Post-administrative changes. These so-called “national interest waivers” will be expanded to include consideration of benefit to the U.S. economy through investment, innovation or job creation.
Significant public benefit parole for entrepreneurs
A new program will grant parole status to inventors, researchers, and entrepreneurs whose work is considered a “significant public benefit,” but do not yet qualify for the national interest waiver described above. According to USCIS, the parole will be available to inventors, researchers and entrepreneurs who have “been awarded substantial U.S. investor financing” or “hold the promise of innovation and job creation through the development of new technology or the pursuit of cutting-edge research.” Persons paroled under this program would be subject to income requirements, would not be eligible for federal public benefits or Affordable Care Act subsidies and would have to leave the United States to apply for any other legal status.
Clarify L-1B program qualifications
DHS will issue clarification on the meaning of “specialized knowledge” as it applies L-1B visas. L-1B visas for “intra-company transferees” are temporary work visas that allow U.S. employers to bring a “professional employee with specialized knowledge relating to the organization’s interest” from an affiliated foreign office to the United States. The program has been subject to criticism that it has been used to transfer employees with little specialized knowledge and replacing U.S. workers. Employers seek clarity so petitions can be appropriately adjudicated.
DHS will develop new guidelines for working immigrants waiting to adjust to LPR through an employment-based petition.
Pre-administrative changes. Current law states that foreign workers in the United States that have been approved for a green card but are waiting for one to become available (due to backlogs and statutory caps) can change jobs only if the new job is in a “same or similar” field as their old job.
Post-administrative changes. USCIS has been tasked with clarifying “same or similar” to allow for workers to receive promotions or transition within their fields without fear of losing their green card petition.
Strengthening visa programs for crime victims
Created in 2000 by the Victims of Trafficking and Violence Protection Act (VTVPA), U and T visas grant non-immigrant status to victims of criminal activity or human trafficking who have suffered abuse and are helpful to law enforcement prosecutions.4 The executive actions will strengthen and expand the two programs by strengthening DOL’s role in certifying U and T visa requests based on workplace crimes including involuntary servitude and trafficking.
Promoting and facilitating naturalization
DHS will promote naturalization (citizenship) among eligible LPRs through media campaigns in 10 states that are home to 75 percent of all LPRs.
Pre-administrative changes. There are about 8 million eligible LPRs who have not chosen to naturalize for a variety of reasons, including costs. Currently, only full fee waivers are issued, and only if the applicant’s income is no greater than 150 percent of the federal poverty level.
Post-administrative changes. USCIS will consider issuing partial waivers of the $680 cost of naturalization if the applicant’s income is between 150 percent and 200 percent of the federal poverty level (e.g., a 50 percent discount). Lastly, USCIS will start accepting credit cards to allow applicants to pay over time.
Streamlining visa process and other changes
A presidential memorandum called on several cabinet agencies to develop recommendations to streamline and modernize immigrant visa processing to reduce costs and burdens on employers. USCIS and the State Department are also called on to ensure that all available visas within a given year are used when there is sufficient demand. (Even some high-demand visas like H-1B go unused every year.) Lastly, DOL will undertake two additional initiatives: modernize and improve its permanent labor certification program (or PERM), which certifies that there are no U.S. workers available for a position before a foreign worker is hired, to make sure it is more responsive to labor needs and shortages; and establish an interagency working group to ensure the consistent enforcement of federal labor, employment and immigration laws at the workplace, which will protect workers from exploitation.
Border Security and Interior Enforcement
DHS will establish three Joint Task Forces as part of a new Southern Border and Approaches Campaign Plan. The new plan aims to strengthen and coordinate efforts to secure the border across relevant agencies and strategically allocate resources along the border going forward.
Following a trend of the past few years, DHS will implement new agency-wide (not just for U.S. Immigration and Customs Enforcement (ICE)) enforcement and removal priorities. The new policy replaces the current memos published in 2011 and 2012 (the so-called “Morton memos”) and outlines the following enforcement priorities:
Priority 1: aliens who pose national security threats (terrorism), convicted felons, gang members and illegal entrants apprehended at the border.
Priority 2: persons convicted of significant or multiple misdemeanors, as well as individuals who entered or reentered this country unlawfully after January 1, 2014.
Priority 3: persons who are non-criminals but have failed to abide by a final order of removal issued on or after January 1, 2014.
The memo also outlines factors that should be considered when exercising prosecutorial discretion, including strong family or community ties and length of time in the country.
Secure Communities Program
DHS will replace the Secure Communities Program with the Priority Enforcement Program (PEP).
Pre-administrative changes. Secure Communities uses existing information-sharing programs between local, state and federal law enforcement agencies to check the immigration status of arrested individuals.5 The Federal Bureau of Investigations (FBI), which receives fingerprints from local law enforcement, automatically forwards the information to ICE to check the individual’s immigration status. If ICE decides to initiate removal proceedings, they issue a detainer request, which forces the local law enforcement to hold that person for up to 48 hours past their released time until ICE could take custody. Several states and localities have recently stopped honoring detainers, believing that they are disruptive to their communities and in fear of recent federal lawsuits that accused them of unconstitutional detention. The program has also come under severe criticism from immigration advocates who argue it allows law enforcement officials to arrest persons as a pretext to learn their immigration status and results in the deportation of non-criminals.
Post-administrative changes. Under the new PEP program, ICE will continue to receive biometric fingerprint information from the FBI but will only seek custody from the state or local law enforcement if the individual held was convicted of offenses listed in Priority 1 or 2 of the new deportation priorities memo (above). Additionally, the controversial detainer requests will be replaced by “requests for notification,” described as: “requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state of local authority.” Other changes in the new program are unspecified.
Though not yet released, the Department of Justice will make several reforms to the immigration court system to address the significant backlog of pending cases and to align their priorities with DHS’s new enforcement priorities. For example, DOJ will close cases of individuals seen a “low priorities.”
1 Read more on the issue of prosecutorial discretion as it pertains to immigration enforcement: http://fas.org/sgp/crs/misc/R42924.pdf