Friday 5: Implications of Obama’s Immigration Executive Action

Yesterday was a big, big deal in immigration law. Whether you view the president’s announcement as executive tyranny or — as I do — a long-overdue reprieve, here are some of the core implications for families.

(There’s good stuff in the announcement for tech workers and entrepreneurs, too, but that’s for another post).

1.  Expansion of “Deferred Action.” The White House estimates 4.4 million individuals will benefit from this policy to defer deportation and issue work authorization to the eligible class. The program is an exercise of prosecutorial discretion benefitting those non-citizens believed to be the lowest priority for deportation. Basic idea: no administration will ever deport all 11,000,000 undocumented non-citizens in the U.S., so best to recognize some families as productive members of society.
2. Deferred Action for Parents (DAP) will now be available for certain parents of U.S. citizens and lawful permanent residents (green card holders). Applicants must have been in the U.S. for a minimum of five years and meet criminal background clearance, which is likely to be strict. There may also be a requirement for the individuals to have a history of paying income tax, though that requirement is not yet clear. Rules for DAP will be available May 2015.
3. Deferred Action for Childhood Arrivals (DACA). The president will expand the DACA program announced in June 2012. Eligibility is broadened by removing the age ceiling for applicants (it had been 31) and bumping the cutoff arrival date to January 2010. The new rules for DACA will be available February 2015. In the interim, individuals may apply using the current guidelines.
4. Revised enforcement priorities. The administration is consolidating its policies on identifying individuals who are high priorities for deportation. Terrorists manage to top the list, presumably having edged out the undead after long policy discussions. But also on the short list (albeit the bottom) are those who recently violated immigration court orders: failing to depart or illegally reentering the U.S. The DACA program has been criticized for causing the increase in child migrants on the southern border. The current policies clamp down on current and future violators while granting reprieve to families already present.
5. Expansion of waiver program for unlawful presence. Many undocumented immigrants are required to return to their home country if they want to benefit based on a family petition. But leaving the U.S. triggers a three- or ten-year bar to reentry, which can be waived only on a showing of hardship to the U.S. family. This has proven to be an unattractive gamble. Under a pilot program, certain relatives of U.S. citizen petitioners could receive initial approval before departing, reducing the risk of pursuing legalization. Yesterday’s announcement expands this program to spouses and children of green card holders.

Resources:

• There will be an enormous need for legal services following this policy announcement. If you are interested in learning more about immigration law, please consider joining the American Immigration Lawyers Association. Feel free to reach out to me and I can connect you with our Washington Chapter.
• The Northwest Immigrant Rights Project website will be updated with new information as it becomes available, both in English and Spanish. They also have a list of upcoming community events, with flyers in English and Spanish.
• I’ve put together a short guide to help explain the Deferred Action programs, and help would-be applicants gather supporting documents. The guidelines for DAP won’t be available for six months, but folks can use their time productively before then.
• If you want the nitty-gritty on the policies, check out program summaries from U.S. Citizenship and Immigration Services, or dive into the detailed policy memoranda.