President Obama Announces Immigration Bills: Real Reform or Band-Aid Fixes? 

Immigration Alert

December 1, 2014

On November 20, 2014 President Obama announced a series of executive actions to reform the “broken” immigration system after Congress failed to pass a comprehensive immigration reform bill this year. These initiatives have not been implemented, and U.S. Citizenship and Immigration Services (USCIS) is not accepting any requests or applications at this time. We have been informed that over the next few months, USCIS will issue detailed explanations, instructions, regulations and forms as necessary. While USCIS is not currently accepting requests or applications, anyone who believes that he or she may be eligible for one of the immigration initiatives should prepare by gathering documents that establish his or her: (1) Identity; (2) Relationship to a U.S. citizen or lawful permanent resident; and (3) Continuous residence in the United States over the last five years or more.

President Obama’s legal authority to act has been questioned by the public and the press. However, there is historical precedent that supports a president’s discretion to act unilaterally on immigration matters. For example, the “Family Fairness” policy implemented by Presidents Ronald Reagan and George Bush, Sr. gave unauthorized immigrants a path to legalization if they had been continuously present in the United States since January 1, 1982. Later, this was extended to spouses and children under 18 of immigrants who were legalizing, provided they met certain criteria.

In addition to Family Fairness, other presidential actions to promote family unity included the suspended deportations of families of visa-holders under President Carter, parole of foreign-born orphans under Presidents Eisenhower and Obama, deferred action to widows of U.S. citizens and their children under President Obama, and parole-in-place to families of military members under President Obama. Presidents Nixon, Kennedy and Johnson granted parole to Cuban asylum seekers fleeing Castro and President Clinton gave deferred action to battered immigrants under the Violence Against Women Act (VAWA).

President Obama’s recent immigration orders have gone beyond family unity, however, and attempted to address other areas of concern, such as enforcement, employment and the economy. The following is a brief summary of the president’s executive actions:

Strengthen Border Security: DHS will implement a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which it will marshal resources to the border.

Revise Removal Priorities: DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border.

End Secure Communities and Replace It with New Priority Enforcement Program: DHS will end the Secure Communities program, and replace it with the Priority Enforcement Program (PEP) that will closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which it will seek an individual in their custody.

Personnel Reform for ICE Officers: DHS will bring ICE agents’ and officers’ pay in line with other law enforcement personnel.

Expand Deferred Action for Childhood Arrivals (DACA) Program: DHS will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the United States before the age of 16, and not just those born after June 15, 1981. The date of entry will be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.

Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents: DHS will extend eligibility for deferred action to individuals who (i) are not removal priorities under the new policy, (ii) have been in this country at least five  years, (iii) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents: The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, DHS will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

Revise Parole Rules: DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

Promote the Naturalization Process: To promote access to U.S. citizenship, DHS will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. DHS will also explore the feasibility of expanding fee waiver options.

Support High-Skilled Business and Workers: DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because the immigration system suffers from extremely long waits for green cards, it will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.

The recent actions by President Obama are an obvious attempt by the Administration to address the growing concern over what many people consider to be the nation’s broken immigration system. However, it is debatable whether these measures will provide meaningful solutions or just Band-Aid fixes for a few issues of a much wider problem.