President Obama’s Executive Actions — Status of Implementation & Political Infighting

By: Robert Gard

 

Two key pieces (expanded “DACA” without age limits and “DAPA”) of President Obama’s Executive Actions Program, announced on November 20, 2014, are scheduled to go into effect on February 18th and May 26th of this year, respectively; but legal and political hurdles to implementation remain. On November 20, 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executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system.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unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions

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 on and after February 18, 2015. The USCIS website has a DACA page/link, where the public can sign up for emailed instructions, updates and further developments: http://www.uscis.gov/immigrationact ion

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 on May 26, 2015.

Status of Implementation and Political Infighting:

Republicans have vowed to fight Obama’s immigration plan, charging the president overstepped his constitutional powers in taking the executive action. More than half of the States have sued the President, and they strategically “forum shopped” for a Federal District Court and a Federal District Judge who would be most likely to favor their position; settling on the Southern District of Texas, Brownsville Division, and Judge Andrew S. Hanen (appointed to the Federal Bench in 2002 by President George W. Bush). As of January 31, 2015, Judge Hanen has not issued his ruling, though it could come any day. Regardless of the ruling, an immediate appeal to the 5th Circuit (Federal) Court of Appeals is expected. Speaker of the U.S. House of Representatives, John Boehner (R –Ohio), has also announced impending legal action against the President.

While most legal scholars have opined that the case is political grandstanding; President Obama did not act improperly, much less unconstitutionally; because Congress has expressly conferred on the executive the authority to “establish policies and priorities” with respect to removal actions, and, in any event, has acquiesced in the decisions by numerous Presidents to grant deferred action status to various groups. There are, however, some legal scholars who have reached an opposite conclusion, and any injunction that may be issued by Judge Hanen in the case filed in Texas could delay or suspend implementation of any or all of the President’s executive actions on immigration announced November 20, 2014, so it is advisable to closely monitor developments before filing, and check with your attorneys or visit the USCIS website link for up-to-date instructions: http://www.uscis.gov/immigrationact ion Briefs in support of the President’s executive actions have been filed with the Federal District Court in Texas by many interested organizations, civil rights groups, labor unions, legal scholars, as well as by about 30 sitting mayors of large and medium-sized cities.

The mayors’ legal brief (amicus brief ) contends that plaintiffs from 17 states have “failed to satisfy” conditions that would justify an “extraordinary remedy of a preliminary injunction.” The mayor’s brief also cites a U.S. Chamber of Commerce study claiming that Obama’s executive action will fuel economic growth in U.S. cities by allowing “invaluable” foreign-born workers to sustain growth “in the face of an aging U.S. workforce and impending retirements.””

Republicans are considering legislation that would keep the Department of Homeland Security fully operating beyond Feb. 27, when its current funding expires. The Wall Street Journal has reported, “While GOP leaders haven’t settled on their course, lawmakers and aides say they may attach a provision blocking the department, which oversees immigration activities, from using any funds or fees to implement any elements of Mr. Obama’s action. But GOP lawmakers acknowledged the challenges of trying to thwart Mr. Obama’s immigration plan without threatening to undermine national security-funding at a time when terrorist attacks have provoked concern world-wide.” Republican members of the House of Representatives have already overwhelmingly (along party lines) passed a bill which would cut funding to the Department of Homeland Security if funds are used or reallocated t in any way suspend the removal of removable aliens, and the President has vowed to veto any such bill if a similar legislation is passed in the Senate.

In the meantime, Republican leadership in both the Senate and the House have appointed the most virulently anti-immigration legislators to chair their immigration subcommittees, Rep. Steve King (R-Iowa) in the House, and Senator Jefferson Beauregard Sessions (R-Alabama) in the Senate. Sen. Sessions has made it clear that he will control what gets to the floor of the Senate for a vote, and any immigration bills that he allows to come up for a vote will need to focus on border security, increased enforcement, and only “bite-sized” portions of anything resembling “reform”. The chances of any bipartisan comprehensive immigration reform bill like the bill that emerged from the Senate in July of 2013 are virtually nil.

On a slightly more positive note, A bipartisan group of Senators lead by Orrin Hatch (RUT) is trying to pass a bill which would raise the H-1B cap (in existence since 1991) from 85,000 to 135,000. The “I-Squared” bill (Immigration Innovation Act) would do this by raising the general cap from 65,000 to 115,000 while leaving the master’s cap at 20,000. Hatch, who heads the Republican’s High Tech Task Force recently stated: “Our high-skilled worker shortage has become a crisis.” Many of his Republican colleagues disagree, and this proposed bill has many hurdles to clear, most importantly, getting by Sen. Jefferson B. Sessions and Sen. Charles Grassley (RIndiana), before it becomes law.

QUICK NOTES:

A Simple Guide To The Affordable Care Act For Immigrants Depending on their legal status, uninsured immigrants will have access to new health care marketplaces starting Tuesday under the Affordable Care Act, which is more commonly known as Obamacare. Almost 20 percent of the total nonelderly, uninsured population are immigrants.

Although the Obama administration is attempting to reach out to as many uninsured individuals as legally possible, some immigrants will remain completely excluded while other immigrants still face eligibility restrictions for health coverage. To navigate through the varying degrees of access, here is a simple breakdown of the type of immigrants who qualify for enrollment: Naturalized citizens and legal permanent residents who have lived here for more than five years. For naturalized citizens and green card holders who have been in the country for five years or more, they will be able to enroll in the health care program just like U.S.-born citizens. These immigrants will also qualify for Medicaid, which is incomedependent. Medicaid coverage is available to people under the age of 65 who earn up to 138 percent of the federal poverty line.

Legal permanent residents who have lived here for less than five years. Legal permanent residents with incomes up to 400 percent below the federal poverty level can qualify for subsidized health care coverage. Those who have been in the country less than five years do not qualify for Medicaid.

Refugees, asylees, immigrants exempt on humanitarian grounds. All of these individuals qualify for health insurance coverage and Medicaid, even if they have lived in the United States for less than five years. Palau, Marshall Islands, and the Federated States of Micronesia residents. Under a special compact, the United States considers individuals from these three United Nations trust territories to be non-citizens who do not receive federal benefits. They do howeve rqualify for marketplace coverage. They do not qualify for Medicaid. H-1B, F-1, J-1 visas. Individuals who are on work visas, student visas, or have been in the country for less than five years are eligible to buy insurance through the health care exchange, but they do not qualify for Medicaid. Deferred Action.

The estimated 455,455 undocumented youths who were approved for deferred action status through a presidential initiative will qualify for neither the health insurance coverage nor Medicaid. Immigrants who were granted deferred action by the judicial system, but not through a presidential initiative, will be eligible for marketplace options and Medicaid.

The 11.7 million undocumented immigrants living in the United States are ineligible for healthcare coverage. However, undocumented immigrants with social security numbers or identification cards issued by a foreign consulate can apply for private, but not state-based, health insurance, if they can afford it. In some states like California, undocumented immigrants can apply for Medicaid (or Medi-Cal), but coverage extends to emergencies, prenatal, and long-term care. The cost is funded not by federal resources, but through state funds.

Undocumented immigrants with U.S. citizen children. This group of immigrants will still be unable to enroll in the health insurance exchange, but their U.S. citizen and legal permanent resident children can qualify for health insurance coverage and Medicaid. Separately, states can choose to use state and federal Medicaid funds to cover pregnant women and other “lawfully present” children.

Legal Latino immigrants make up nearly 30 percent of the total uninsured population. The government has launched a Spanish-language website, CuidadodeSalud.gov, but that enrollment through the site has been delayed until October 21. However, the English-language website launched on the first day of open enrollment and the government’s help line has provided Spanish-language speakers along with speakers of 150 other languages.

COPYRIGHT BY AUTHOR — 2015

This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation. Mr. Gard has been engaged in the practice of immigration law since 1977. He is a frequent writer and lecturer in the American Immigration Lawyers Association and has served that professional organization as a Chapter Chair of the Greater Chicago Chapter, and as a Director. Written questions may be submitted to Mr. Gard. At his discretion, selected questions or issues may be addressed in subsequent articles. Mr. Gard is available for appointments for consultation in immigration law-related matters at the law offices of Immigration Attorneys, LLP, 203 North LaSalle Street, Suite# 1550, Chicago, Illinois 60601, Contact Information (email is the preferred method of contact): e-mail: rgard@immattyllp.com