Background on the Facts: Executive Action & Immigration Reform

Tuesday, February 17, 2015

On November 20, 2014, President Obama issued a series of memoranda to the cabinet secretaries responsible for overseeing the nation’s immigration system. The actions were expressly not changes in law, although the president proclaimed he had taken actions affecting naturalization, deferred action, parole-in-place, and border security. Some of the actions are permanent, others are explicitly temporary (notably the three-year status of deferred action on deportations), but all will affect millions of undocumented immigrants in the United States.

Two of the largest administrative changes concern so-called DREAMers and undocumented immigrant parents of US citizens or legal permanent residents (Green Card holders). Under the first change, the current Deferred Action for Childhood Arrivals program has been extended from a two-year renewable relief period to three years, allowing adults who arrived illegally as children to gain temporary permission to remain in the United States.Those given deferred action are also granted work authorizations during their term. The previous maximum age of thirty-one for receiving relief was also eliminated. The extension is estimated to affect some 235,000 to 290,000 individuals.

The second administrative action provides similar deportation relief to undocumented immigrants who are parents of US citizens or Green Card holders, sometimes known as DAPA. Individuals can qualify if they have resided in the United States continuously since January 1, 2010, but must register to receive three-year temporary permits to live and work in the here. The change will affect an estimated 3.9 million adults. Parents must pass a background check and pay an application fee for the provisional waiver. Individuals with serious criminal records will not be eligible.

All illegal immigrants, including nonviolent criminals, could enjoy deportation relief because of the changes in prosecutorial discretion, which is bigger in scope than DAPA. According to the DHS, “those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.”

The White House rationale for these actions is that “Due to limited resources, DHS and its components cannot respond to all immigration violations or remove all persons illegally in the United States.” According to one memorandum, such deferred actions are a “long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time.” DHS “deprioritizes”  individual cases of residing illegally in the United States for humanitarian reasons, administrative convenience, or the interest of DHS’s mission. Ten days after the announcement, the New York Times reported that “the Citizenship and Immigration Services agency said it was immediately seeking 1,000 new employees to work in an office building to process ‘cases filed as a result of the executive actions on immigration.’ The likely cost: nearly $8 million a year in lease payments [for a new operations center just outside of Washington, DC] and more than $40 million for annual salaries.”

President Obama made several other changes to the way the immigration system operates. Previously, spouses of high-skilled H-1B temporary work visas were not given any sort of authorization to work. Under the new rules, they would be eligible for such authorization if their spouses had been approved for a Green Card but were waiting for a visa to come available, a process that can take years. Obtaining a green card will also become easier due to “national interest waivers” for individuals who invest or create jobs in America. 

Portability for current worker visas will be expanded, fixing the problem os promotions’ calling into question whether their jobs were the “same or similar” to their previous position, allowing immigrants to advance in their careers without fear of losing their visas.

Foreign students were previously allowed to work for twelve months (twenty-nine months for STEM students) upon graduation. Under new rules, more degrees will be eligible and the work authorization extended.

President Obama also directed the US Citizenship and Immigration Services to expand the provisional waiver program for undocumented immigrants applying for legal permanent resident status. (During the application process, however, they are required to return to their home country.) Previously, if undocumented immigrants applying for Green Cards were found to have lived in the United States for longer than six months, they would be barred from reentering for three years (ten years if they had resided illegally for more than a year). Applicants could apply for a waiver to the remove the three-year ban but only after leaving the country, leaving them unsure if they would be able to obtain such waivers. Under the new regulation, they will be able to apply for waivers before leaving the country, giving them more stability in their lives.

Another memorandum dictated new priorities for border security and interior enforcement. DHS and Immigration Customs Enforcement will target dangerous individuals for removal first and lower the priority of removing noncriminals and first-time offenders. The Department of Justice has also been directed to close cases of low-priority individuals

Finally, President Obama is attempting to increase naturalizations among Green Card holders eligible for citizenship. The cost of naturalization will be waived for individuals whose incomes are below 150 percent of the poverty level and subsidized for those between 150 percent and 200 percent of the poverty level. All applicants will also be able to pay for their naturalization fees with credit cards, expanding the current options of money order or check.