On November 20th, 2014 President Obama took executive action on immigration. While he has long stated that he prefers legislation to unilateral action, Speaker of the House of Representatives, John Boehner, has currently not given any indication that he intends to act on immigration this year.
President Obama’s plan include sweeping reforms for various areas of immigration. Most notable is his measure that allows 4.4 million undocumented parents of U.S. citizens and legal permanent residents who have been in the United States for 5+ years to remain in the country temporarily, with the right to work.
For more than 200 years, our tradition of welcoming immigrants from around the world has given us a tremendous advantage over other nations. It's kept us youthful, dynamic, and entrepreneurial.
- President Obama, November 20th, 2014
Deferred Action for Childhood Arrivals (DACA) program
What: Deferred Action for Childhood Arrivals (DACA) program
When: This program begins 180 days following President Obama’s November 20th, 2014 announcement
Additional resources: DACA Program Website
Overview: Obama’s executive action is an expansion of this 2012 program, which allows unauthorized migrants who came here as children to get temporary protection and work permits. Currently the government estimates that 1.2 million immigrants are eligible for DACA, although only about 600,000 have actually applied for and received protection.
- Immigrants who are currently older than 30, but who entered the United States before they were 16 years of age are now eligible for DACA;
- Immigrants who entered the United States after 2007, but before 2010, are now eligible for DACA; Have continuously lived in the United States Since January 1, 2010;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety; and
- Apply with the government.
Deferred Action for Parents of U.S. Citizens and/or lawful permanent residents.
What: Deferred Action for Parents of U.S. Citizens and/or lawful permanent residents.
When: This program begins 90 days following President Obama’s November 20th, 2014 announcement.
Additional resources: USCIS Immigration Website
Overview: U.S. citizens who are 21 years of age or older are allowed to apply for their parents to get legal status. The rationale behind this policy change is to allow parents deferred immigration action so that they can stay in the United States until their children turn 21 and can get them permanent legal status. Fundamentally, this policy change helps to keep families together.
- Continuous residence in the United States since January 1, 2010;
- Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014;
- Pass a criminal background check;
- Pay a fee; and
- Apply with the government.
How will these programs work?
Both programs will officially launch in Spring 2015. However, people will have to apply with the government. This is a problem that the administration acknowledges is tricky. These are people that have been forced to live in the shadows for years and have likely learned that any encounter with the government can result in deportation.
The best way to utilize these programs is to review the qualifications and whether or not you, or your family, fit the criteria. Then, it is best to speak with an immigration lawyer to ensure that utilizing one of these programs is beneficial for your short-term and long-term immigration goals.
Is this a path to citizenship?
Only Congress can reform the path to citizenship.
Obama’s immigration reform is only granting certain classes of immigrants a three-year span of time in which they cannot be deported. The program will also grant work permits that are valid for the same amount of time. In most states, deferred action also makes one eligible for a driver’s license.
However, after this three-year span the immigrant must either apply for renewal or they are vulnerable to deportation.
What are the risks?
Some critics of Obama’s immigration reforms have stated that a different presidential administration could theoretically stop accepting applications or renewals, which will slowly kill the program over three years. A new administration could also kill the program entirely. While no group has expressed a firm intention to do this, it is a risk that every immigrant should seriously consider when drafting a short-term and long-term immigration plan.
Is it legal for the President to do this without Congressional approval?
The executive branch has a lot of authority concerning immigration to decide who to deport and who not to deport. Even experts at The Federalist Society, a conservative think-tank focused on the interaction of law and policy, agree that President Obama has the executive authority to take immigration actions like this.
What other changes are being made to immigration policy?
Reforming Secure Communities.
The “secure communities” program sends the fingerprints of anyone booked in a local jail to immigration officials. This allows federal agents to ask local cops to hold the inmate so that they can come retrieve them and likely begin the deportation process. Several cities and states, including San Francisco, have rebelled against this by refusing to hold an immigrant just for ICE to pick him or her up.
"The standard on which you can get a detainer for someone doesn't even meet the standard for an arrest, which is probable cause." - George Gascon, San Francisco District Attorney
The federal government is now only asking state and local officials to hand over an immigration if he or she has been convicted of a serious crime (or a third misdemeanor). Further, federal agents will no longer require cities and states to hold the immigrant, they will simply ask when the immigrant is due to be released and take custody of them at that point.
Spouses of green-card holders can now apply for legal status in the United States.
Green-card holders can always apply for visas for their spouses, however if that spouse is already in the United States as an unauthorized immigrant then things can get extremely hard. The new reform allows spouses of green-card holders to apply for a waiver that would let them get legal status - instead of having to wait outside the country for months without any guarantee of return (a policy that has long been in effect for US citizens).
The White House Council of Economic Advisors estimates this will create 104,000 to 167,000 new work permits.
More work permits for recent graduates.
Currently the Optional Practical Training (OPT) program allows students to work in the United States for 1 year after graduation. Obama’s new immigration reform would allow foreign students of Science, Technology, Engineering, and Math (STEM) to apply to stay for an additional 17 months.
There are currently 100,000 - 200,000 students in the United States in the OPT program. The reform would lead to an estimated 10,000 - 36,000 more OPT visas.
Visas for foreign Entrepreneurs.
The executive branch is planning to use its parole authority to make more flexible requirements for foreign entrepreneurs who invest in job-creating businesses to move to the United States.
The administration expects roughly 33,000 - 53,000 new visas to be granted via this channel.