On November 21, 2014, President Obama made an announcement regarding several areas of US immigration policy. The most significant was to address approximately 4.4 million aliens living in the US without documentation. His announcement includes the following measures.
Deferred Action for Parents of US Citizens and Lawful Permanent Residents
An alien living in the US without documentation can apply to be eligible for “deferred action” which will allow him or her to remain in the US for three years. Based thereon, the US Department of Homeland Security (DHS) will defer for three years the individual’s being removed from the US for being here without authorization, if he or she:
- Is not an enforcement priority under DHS policy, meaning a criminal, suspected terrorist, felon, or gang member;
- Has continuously resided in the US since January 1, 2010;
- Is physically present in the US when DHS initiates this program and at the time of applying;
- Has a child who is a US citizen or lawful permanent resident, known as holding a green card; and
- Presents no other factors, in the exercise of DHS discretion, making this grant inappropriate.
Like the Deferred Action for Childhood Arrivals (DACA) discussed below, decisions will be made on a case-by-case basis, approval can be revoked, and will not automatically put someone en route to permanent US residency or US citizenship. Like a DACA recipient, an individual eligible for this immigration relief can get a Social Security number and will receive employment authorization if economic need can be demonstrated. The individual will not be eligible for government benefits under the Affordable Care Act or other government subsidy programs.
Deferred Action for Childhood Arrivals (DACA)
This executive action will not legalize the status of the parents of the so-called “Dreamers,” those young people who received temporary status under the 2012 DACA program. However, the DACA program will be expanded. Currently, the only eligible DACA recipients are those who were born prior to June 15, 1981, arrived in the US prior to January 1, 2007, and were under the age of 31 as of June 15, 2012. The cut-off age of 31 will be eliminated and the cut-off date for arrival in the US will be extended to January 1, 2010. DACA recipients will also get three years’ relief, the same as the new policy for eligible parents of US citizens and permanent residents.
Secure Communities Program to Change
President Obama also plans to change the controversial Secure Communities program to a Priority Enforcement Program (PEP). Secure Communities uses an already-existing federal information-sharing database between Immigration and Customs Enforcement (ICE) and the FBI. Under this program, when an individual is arrested by local law enforcement for a criminal violation of local, state or federal law, the arresting officer automatically notifies ICE which in turn makes the decision whether immigration enforcement is warranted. The process will change under the President’s executive action so that, instead of local law enforcement notifying ICE of an arrest, ICE will put in a request to local law enforcement through PEP to detain an individual. Therefore, the notification providing ICE with information on an arrested individual will no longer be automatically generated by local law enforcement upon arrest as it was under the Secure Communities program.
Prosecution and Deportations
- Three groups will continue to face prosecution and removal:
- Suspected terrorists, felons and gang members and those who entered the US illegally since January 1, 2014;
- Those with a record of significant misdemeanors and multiple misdemeanors, mirroring current DACA guidelines; and
- Those who ignored removal orders and reentered the US after 1/1/2014.
Other Immigration Reform
Some of the more salient points touching other areas of immigration law follow.
- Pre-registration will be available to allow people who are legally in the US and awaiting green cards to adjust their status to that of lawful permanent residents when such status has been approved, but there have been no green cards available due to those individuals’ countries of nationality being over-subscribed. This policy is estimated to benefit 400,000 individuals.
- Travelling outside the US while a lawful permanent resident petition is pending will not result in the traveler being inadmissible when attempting to re-enter the US.
- There will be a clarification for the standard of extreme hardship for waivers of unlawful presence in the US for some relatives of US citizens and lawful permanent residents.
- Clarification will be provided of the standard by which a national interest waiver entitling individuals to remain in the US may be granted for foreign inventors, researchers and founders of start-ups that benefit the US. Further, authorization to remain in the US will be granted for eligible inventors, researchers and founders of start-ups who do not qualify for a national interest waiver, but who have been awarded substantial US investor financing or promise innovation and job creation through the development of new technologies or cutting edge research.
- Spouses of H-1B visa holders may work if they are on the path to permanent US residence.
- Greater clarity will be provided to interpret the “specialized knowledge” requirement for L-1B nonimmigrant visa status, a visa for transferees from a foreign parent or affiliate.
- The use of the Optional Practical Training Period, an authorized period of work authorization for graduates in the US, currently at 29 months for STEM graduates and 12 months for all others, will be expanded and extended.
- The required labor certification by the US Department of Labor, a precursor to applying for a green card, will be modified to move more smoothly.
Notably missing is any action for temporary agricultural workers who do not qualify for some type of relief through their US or permanent resident children.