IMMIGRATION TOPICS

By: Robert Gard

 

On November 20, 2014, President Obama Announced a Series of Executive Actions to Crack Down on Illegal Immigration at the Border, Prioritize Deporting Felons Not Families, and Require Certain Undocumented Immigrants to Pass a Criminal Background Check and Pay Taxes in Order to Temporarily Stay in the U.S. Without Fear of Deportation.

On November 20 and 21, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system. The series of executive actions presented by the administration range from new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions. The series of changes, updates, and temporary measures relies on the expansion of successfully implemented programs, enhanced efforts to coordinate immigration enforcement and benefit policies across agencies, and attempts to use immigration as a tool of economic and social change. At the same time, the policies reflect the limits of executive authority, in many cases offering temporary respites until Congress definitively acts to reform the law. To learn more, please visit http://www.uscis.gov/ImmigrationA ction At the same time, the policies reflect the limits of executive authority, in many cases offering temporary respites until Congress definitively acts to reform the law. This brief summary puts some of the key issues in context, explaining what we know about the executive actions thus far, what the President’s legal authority is for these actions, and some of the history and background that preceded the announcement. The American Immigration Council (“AIC”), among others, have analyzed the Presidential directives, and their full 23 page analysis can be found at this link: http://www.immigrationpolicy.org/sp ecial-reports/guide-immigrationaccountability- executive-action Quoting portions of the American Immigration Council report: “Overview of the Immigration Accountability Executive Action The President announced efforts to retool critical aspects of the immigration system—how we enforce immigration laws, how we process immigration benefits, how we encourage further business innovation, and how we welcome immigrants to this nation. In addition, acknowledging the failure to reach a legislative solution that addresses the fate of unauthorized immigrants who have lived in the country for years, the President authorized the Department of Homeland Security (DHS) to significantly expand its use of deferred action to provide temporary protection from removal for millions of unauthorized immigrants currently in the U.S. This will be accomplished through expansion of the current Deferred Action for Childhood Arrivals (DACA) program, as well as the creation of a new deferred action program, Deferred Action for Parental Accountability (DAPA). The expanded use of deferred action is coupled with other enforcement measures, including a new, department-wide enforcement priorities memo that provides greater direction to all agencies to focus attention on national security threats, those with criminal convictions, and recent unlawful entrants. DHS is replacing the controversial Secure Communities program in favor of a new model of federal/state/local cooperation that focuses on convicted criminals rather than all unauthorized immigrants encountered by local authorities. DHS will further consolidate its approach to border security, developing new task forces to coordinate the numerous federal actors at the southern border. Inter-agency task forces will be formed to make recommendations to modernize and streamline current visa-processing practices; improve coordination among the Department of Labor, DHS, and other federal agencies; and ensure the protection of immigrant workers’ rights. The President also created a New Americans Task Force, tasking a broad range of federal agencies to develop a national policy on immigrant integration and cooperation with local communities, and has directed U.S. Citizenship and Immigration Services (USCIS) to embark on an ambitious effort to encourage naturalization. Numerous other programs will be tweaked or expanded, including programs that protect unauthorized family members of persons who join the military, an expansion of eligibility for in-country processing of waivers of the three- and 10-year admission bars, and protections for high-skilled workers transitioning from a temporary to a permanent legal status. These measures will be implemented in a variety of ways. For instance, the President signed two memoranda launching initiatives around integration and visa reform, but other actions have been announced through memos issued by DHS and other cabinet agencies. Some, such as the new enforcement priority memo or eligibility for deferred action programs, have specific categories and criteria already established. Other memos direct the agencies to explore, consider, draft, recommend, or otherwise issue policies and recommendations that will be developed and implemented over the course of the next two years. In either case, answers to many questions about how programs will be developed or implemented, and the role of stakeholders in shaping them, are still forthcoming. Deferred Action Programs What is the new DAPA program? The Deferred Action for Parental Accountability (DAPA) is a prosecutorial discretion program administered by USCIS that provides temporary relief from deportation (called deferred action) and work authorization to unauthorized parents of U.S. citizens or Lawful Permanent Residents (LPRs). The DAPA program resembles the DACA program in some important respects, but the eligibility criteria are distinct. The program will be open to individuals who: have a U.S. citizen or LPR son or daughter as of November 20, 2014; have continuously resided in the United States since before January 1, 2010; are physically present in the United States on November 20, 2014, and at the time of applying; have no lawful immigration status on November 20, 2014; are not an enforcement priority, which is defined to include individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators present no other factors that would render a grant of deferred action inappropriate; and pass a background check. DAPA grants will last for three years. The DAPA program should be ready to receive applications within 180 days. How was DACA expanded? Deferred Action for Childhood Arrivals (DACA) is a prosecutorial discretion program administered by USCIS that provides temporary relief from deportation (deferred action) and work authorization to certain young people brought to the United States as children—often called “DREAMers.” While DACA does not offer a pathway to legalization, it has helped over half a million eligible young adults move into mainstream life, thereby improving their social and economic well-being. On November 20, 2014, the Administration modified the DACA program by eliminating the age ceiling and making individuals who began residing here before January 1, 2010 eligible. Previously, applicants needed to be under the age of 31 on June 15, 2012, and to have resided here continuously since June 15, 2007. Moreover, the Administration announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two. While USCIS will continue to take applications and renewals under current eligibility criteria, those eligible under the new criteria should be able to apply within 90 days of the announcement. How many people are affected? The White House estimated that almost 5 million unauthorized immigrants could be directly affected by the DACA and DAPA programs. A recent analysis from the Migration Policy Institute estimates that as many as 3.7 million unauthorized immigrants could be eligible for the DAPA program, while another 300,000 people could qualify for DACA under the expanded guidelines. Based on previous estimates that 1.2 million people were eligible for the original DACA program, this expansion brings the total of potential DACA-eligible individuals to 1.5 million people. Taken together, the MPI figures suggest that 5.2 million unauthorized immigrants could qualify for protection from removal under the two programs. However, past experience suggests that the actual number who apply for the program may ultimately be much smaller, depending on outreach, access, cost, and numerous other factors How will the government ensure that people eligible for DAPA are not deported before the new program is in place? DHS has instructed officials in both Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to identify expanded DACA and DAPA-eligible individuals who are already in their custody, in removal proceedings, scheduled for deportation, or whom they newly encounter, and to exercise discretion favorably for those individuals. For eligible individuals in immigration court or before the Board of Immigration Appeals, ICE lawyers are instructed to close or terminate their cases and refer those individuals to USCIS for case-by-case determinations. Why can’t the President just grant a permanent legal status and be done with this? The new DAPA program, like the DACA program, is a temporary measure, designed to eliminate the fear of removal while the country comes to a resolution about permanent legal status for the unauthorized. The executive branch can defer action, effectively declining to remove an individual, but only Congress can determine who is eligible for permanent legal status and citizenship. Why isn’t DAPA an amnesty? The DAPA and DACA programs are temporary measures that do not meet either the technical or the political definitions of amnesty in use today. Technically, an “amnesty” is a governmental pardon, often issued to individuals or groups convicted of crimes, and it represents a form of forgiveness in which the offending party is admitted back into the fold. The 1986 legalization program was often referred to by its supporters as an amnesty—under that program, people who were in the country unlawfully could come forward, prove that they met certain criteria, pay fees, and obtain a green card. Over the years, the term amnesty has been appropriated by immigration critics and restrictionists to imply a “something for nothing” deal, in which legalization is viewed as a reward for entering the country unlawfully. For many immigration critics, anything short of deportation is an “amnesty,” irrespective of the stringent criteria put in place to ensure that unauthorized immigrants pay penalties and fulfill numerous other requirements to obtain a legal status. In the case of DACA and DAPA, these programs offer some unauthorized immigrants a temporary reprieve, but offer neither permanent legal status nor a chance at citizenship. That power remains in the hands of Congress. Will DAPA recipients be eligible for public benefits? DAPA recipients will not be eligible for federal public benefits, including federal financial aid, food stamps, and housing subsidies. The New York Times has reported that the Obama Administration will promulgate regulations to exclude DAPA recipients from any benefits under the Affordable Care Act, much as it did in the aftermath of the DACA announcement. Whether DAPA recipients will be eligible for state benefits and opportunities like driver’s licenses, in-state tuition, and professional licenses will turn on the law of the state. As of the publication of this guide, deferred action recipients are eligible for driver’s licenses in the overwhelming majority of states. What is the Presidential Memorandum on visa modernization? On November 21, 2014, the President issued the Presidential Memorandum on “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century.” In this memo, the President called on immigration agencies to develop recommendations to improve the current visa system, while at the same time reinforcing that legislative reforms were needed to bring the U.S. immigration system in line with current economic and national security needs. He has directed the Secretaries of the Departments of Homeland Security and State, working in consultation with the White House, the Attorney General, the Secretaries of Agriculture, Commerce, Labor, and Education, and non-governmental stakeholders to submit recommendation to him by March 20, 2015. The recommendations shall be designed to ensure (1) that the processing of all immigrant (permanent) and non-immigrant (temporary) visas is done efficiently, with an emphasis on reducing costs, waste, and fraud while improving services; (2) that all available immigrant visa numbers are used consistent with demand; and (3) that a stronger technology infrastructure exists to improve the applicant’s experience, enable better oversight, and eliminate duplicative systems. The recommendations must include metrics for measuring progress in implementation and in achieving service improvements, while still protecting U.S. border integrity and economic opportunities for U.S. and foreign workers. DHS Secretary Jeh Johnson issued a memorandum outlining new policies that support U.S. high-skilled businesses and workers by better enabling U.S employers to hire and retain foreign workers. First, the Secretary directed USCIS to take steps to reduce wait times for employment- based immigrant visas and improve visa processing. Far too often, visas have gone unused due to processing issues. USCIS will work with the Department of State (DOS) to ensure that all visas authorized by Congress are issued to eligible individuals when there is sufficient demand. USCIS also will work with DOS to improve the process for determining when immigrant visas are available to applicants during the fiscal year. In addition, the Secretary directed USCIS to consider regulatory or policy changes that ensure that individuals with pending immigrant visa petitions will not lose their place in line if they change jobs. Second, the agencies have announced a series of policy changes intended to prevent ambitious and creative people, many of whom received their higher education in the United States, from continuing to leave the country and work abroad—a trend that has created great uncertainty and frustration for employers. The proposed changes will include: Reforms to the Optional Practical Training (OPT) program, which authorizes foreign students before and after graduation from U.S. schools to gain experience through work in their fields. The changes would expand the degree programs eligible for OPT. In addition, they would allow foreign students with degrees in designated science, technology, engineering, and mathematics (STEM) fields who are already eligible for OPT to work for a longer period in the United States. Expanded opportunities for foreign inventors, researchers, and founders of start-up enterprises to conduct research and development and create jobs in the United States. Consolidated guidance to ensure greater consistency in the adjudication of L-1B visas for “intracompany transferees.” These visas allow multinational companies to transfer certain managers, executives, or persons with specialized knowledge in their fields to the United States for a temporary period. Increased flexibility in the rules permitting applicants for employment-based permanent resident status to change jobs (called “porting”), if their applications are stalled due to processing delays. Review of the Department of Labor’s certification process for foreign labor, known as the PERM process. The certification process is an initial step in obtaining employment-based permanent resident status and requires DOL to determine that there are not sufficient U.S. workers for the position and that employment of the foreign worker will not adversely affect U.S. workers.