Immigration by Executive Order

Last night, President Barack Obama announced a new Executive Order designed to address several (of many) immigration issues facing our country.  The first understatement is to acknowledge that his use of an Executive Order has drawn considerable controversy.

First, let's address the Executive Order issue.  President Obama, like Presidents Ronald Reagan and George H.W. Bush before him, has used an 'Executive Order' to address the problem of undocumented persons in the United States - but that doesn't necessarily make it a desirable approach.  I think everyone would agree that a well-considered, bi-partisan Congressional bill reflecting joint compromise would be a more acceptable and supportable approach to dealing with this issue.  Most people have forgotten, but a mere 16 months ago, the U.S. Senate was able to overwhelmingly pass such a comprehensive bi-partisan immigration bill.  Unfortunately, it never made it into the House of Representatives for a vote, so it appears that the best chance of handling the immigration issue in a cooperative legislative fashion is in our past.
 It should also be noted that since the President cannot pass legislation on his own, he is actually fairly limited in what he can do from an Executive standpoint.  Taking this action does not create a new opportunity for legal status, it does not create a new law and does not change the law as it now exists; it does, however, change the way certain portions of the law, interpreted in the federal regulations, are carried out.  In doing so, however, it broadens and expands benefits that certain undocumented persons may secure.

The Executive Order addresses five different initiatives to address the immigration system.  Three of these initiatives are concrete proposals that have real impact on certain immigration procedures.  The other two statements are simply aspirational comments.

Briefly, here are 3 fundamental areas of immigration practice affected by the President's actions:



DEFERRED ACTION FOR PARENTS OF U.S. CITIZENS

What it does:  Under this provision, certain persons who are not lawfully present in the U.S. but have children who are U.S. citizens or Lawful Permanent Residents ('green card' holders) would be able to gain the benefit of not being removed from the country ('deported').  And while they are in the U.S., they are given permission to work, pay taxes and abide by the labor laws of this country.

Who is affected:  Only parents who have been in the U.S. since January 1, 2010 and whose children are U.S. citizens or Lawful Permanent Residents may apply for this benefit.

What this changes:  Presently, this benefit known as 'Deferred Action' is already available in certain cases, and by Executive Order in the summer of 2012, was expanded to specifically include children who were brought to the U.S. before the age of 16.  This prior Executive Order is referred to as Deferred Action for Childhood Arrivals, (or 'DACA'). 
     Currently, U.S citizens over the age of 21 may sponsor a parent for Lawful Permanent Residency - but - typically the parent has accrued unlawful presence such that he or she would be barred from entering the U.S. for 10 years if the parent were to leave the U.S. to obtain his or her 'green card'.  
     The President's Executive Order of November 20, 2014 further extends 'Deferred Action' to allow these same parents the opportunity to remain in the U.S. and work based upon the presence of a son or daughter - regardless of age - who is either a U.S. citizen or a Lawful Permanent Resident.  It does not permit them an alternative opportunity to get Lawful Permanent Residency.

When it starts:  It is anticipated that this benefit will become available before the end of May 2015.



DEFERRED ACTION FOR CHILDHOOD ARRIVALS ('DACA')

What it does:  Under this provision, the population of eligible applicants for DACA (described above) is expanded by allowing more recent arrivals to apply, eliminates the age limit and extends work authorization to three (3) years.

Who is affected:  Persons who were brought here as children well before June 15, 1981 - as well as those who have arrived after June 15, 2007 but before January 1, 2010 -  may now apply for this benefit.  Current DACA recipients can take advantage of an additional 1 year of work authorization when they renew their request for DACA benefits.

What this changes:  Presently, one of the criteria for DACA is that the person was under the age of 31 as of June 15, 2012; this leaves out persons born before June 15, 1981 and who came to the U.S. as children.  Now, the age limit is eliminated and anyone meeting the rest of the criteria is eligible to apply.  In addition, the present policy requires that an applicant also prove that he or she has resided in the U.S. continuously since June 15, 2007.  The new provision extends that date to January 1, 2010, so that more recent arrivals may now also apply for this benefit.
     Finally, the original DACA Executive Order permits work authorization to a successful applicant for two (2) years.  That period of work authorization will now be extended to three (3) years.

When it starts:  It is anticipated that these extended benefits will become available before the end of February 2015.



PROVISIONAL WAIVERS OF UNLAWFUL PRESENCE

What it does:  Under this provision, the population of eligible applicants for a Provisional Waiver, ('601A' Waiver), is expanded to include sons and/or daughters of U.S. citizens and Lawful Permanent Residents.

Who is affected:  Older children of U.S. citizens - as well as children of Lawful Permanent Residents - who are now permitted to apply for a Provisional Waiver.

What this changes:  An individual who has remained in the U.S. unlawfully for 180 days - and leaves the U.S. - is subject to a 'bar' of returning to the U.S. for 3 years.  If the individual is in the U.S. unlawfully for 1 year or more, the 'bar' is 10 years.  A 'Waiver' of the 3 or 10 year bar is available for an individual who is subject to the 'bar' - but is nonetheless eligible to get a 'green card' at a U.S. Consulate abroad - if the person can show that it would create an 'extreme hardship' to a U.S. citizen spouse or parent of the applicant.  The 'Waiver'  gives this applicant the ability to return to the U.S. immediately without having to wait for the end of the 3 or 10 year 'bar'.  Normally, one applies for the 'Waiver' after he or she has left the country (thus triggering the 'bar') to interview for the 'green card' at the U.S. Consulate abroad. 
     Through executive action in 2013, President Obama created a 'Provisional' or '601A' Waiver that permitted an individual who is a spouse or child of a U.S. citizen to take advantage of the Waiver before the individual left the country for a 'green card' - thus giving certainty to the applicant that he or she could immediately return to the U.S. after the 'green card' appointment. 
     Under the new provisions of the November 20, 2014 Executive action, persons eligible to take advantage of the '601A Provisional Waiver' program will be expanded to include adult children of U.S. citizens as well as spouses and children of Lawful Permanent Residents, as well.
     Finally, the term 'extreme hardship' will be more clearly defined and, presumably, less restrictive, than before (although this remains to be seen).

When it starts: Unknown; generally whenever new regulations are issued.


Finally, there are several aspirational statements committing the Executive Branch of the U.S. Government to work towards refining, expanding and expediting the process for the Labor Certification Applications ('PERM'), employment authorization for certain dependents of H-1B visa holders, the immigration visa issuance process and others.

Over the next several weeks, we will be exploring in more depth the significance and practicalities of these new initiatives so that you can gain a better understanding of what may lie ahead.