Summary of President Obama’s “Immigration Accountability Executive Actions” Plan

On November 20, 2014, President Obama announced a series of immigration reforms to address several parts of the immigration system. Some of his key initiatives are expanded and new deferred action program for undocumented individuals in the U.S., improvements to certain business and family petitions, and border security and enforcement.

Deferred Action Changes

President Obama announced changes to the Deferred Action program that will impact an estimated 4.4 million undocumented individuals in the U.S. These changes include expanding the current Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. The public policy reasons behind these programs are two-fold. First, the expansion of deferred action will bring more people out of the shadows so there is no longer a fear of being removed and separated from one’s family. The other reason is that mass deportation would gravely fracture American society and hurt the economy, which is still recovering from the recession.

Deferred Action for Childhood Arrivals (DACA)

The current DACA program’s requirements will be expanded to include more applicants. The program will eliminate the current age cut-off (31 years old at the time of original DACA announcement). This means a 40 year old can apply for DACA if they meet the other requirements. The applicant must have entered the U.S. before the age of 16, but the arrival date has now been extended to on or before January 1, 2010. Considering the prior arrival date was June 15, 2007, this increases the number of eligible individuals who can apply for deferred action. Finally, the applicant must have been present in the U.S. on November 20, 2014 and not be in lawful status at that time.

In addition to the changes to eligibility, DACA work permits will be valid for 3 years instead of 2 years, providing more time to work before reapplying for work authorization. This allows many individuals the time and the opportunity to go through the process to fix their status during that time.

Deferred Action for Parental Accountability (DAPA)

The executive action also created DAPA program for parents of U.S. citizens and green card holders. Qualifying individuals will now be eligible to apply for a work card under this new program. To qualify, the applicant must have a son or daughter (of any age) who is a U.S. citizen or green card holder; have been continuously present in the U.S. since before January 1, 2010; and were physically present in the U.S. on November 20, 2014 and at the time of DAPA application. DAPA will be granted for a three-year period.

ICE and CBP’s role in the DACA and DAPA programs will also reflect the shift in enforcement priorities for removal of undocumented individuals in the U.S. Any individual who is in ICE or CBP custody and meets the new criteria will have their removal cases closed and have them referred to USCIS for determination of eligibility. Furthermore, ICE will have a process established so that individuals in removal proceedings can identify themselves as potential DACA/DAPA candidates who benefit from deferred action programs. These changes demonstrate President Obama’s focus on removing individuals who pose a threat to our communities rather than using our resources to split apart families.

Improvements to Adjudicating Business and Family Petitions

President Obama addressed several additional changes with respect to business and family petitions. These changes include expansion of the I-601A Provisional Waiver, reforms to the employment visa system, guidance for foreign entrepreneurs, improvements in the adjustment of status process, H-4 spouses being granted work authorization, extended periods for STEM-based OPTs, L-1B visa guidance, and clarification of other immigration issues. However, most of these changes lack details and need additional announcements from the government. The most significant changes are as follows

– I-601A Provisional Waiver Expansion

The waiver will be expanded to include spouses and sons and daughters of LPRs and sons and daughters of US citizens. Currently, only spouses and minor children of US citizens may apply for a provisional waiver. Also under this new initiative, the term “extreme hardship” will be clarified and further expanded. This has been a serious cause of concern for individuals seeking provisional waiver because they must demonstrate “extreme hardship” to a citizen spouse or parent but USCIS has not provided clear guidance on its meaning.

– Business Immigration Changes

• DHS will identify the conditions under which talented foreign entrepreneurs, inventors, researchers, and founders of startups may be paroled into the U.S., if their entry is determined to be of significant public economic benefit.
• USCIS will issue a policy memo to clarify the meaning of “specialized or advanced knowledge” in adjudicating L-1B petitions.
• USCIS will issue a final rule on H-4 employment authorization so that some H1B spouses can receive work authorizations.
• Expand STEM category and STEM OPT period.
• Review and modernize PERM program and regulations.

– Visa Backlog Modernization

Under these changes, the agencies will make the necessary changes to optimize the use of visa numbers available under the law and to recapture unused visas. Those who are caught in visa backlogs with approved employment-based petitions may become eligible to file for adjustment of status. This change addresses several significant issues, including the employee’s ability to change jobs and the chance for their spouses to get work visas during this time. However, no time frame has been announced.

– Parole-in-place

This policy will be expanded to spouses, parents, and children of US citizens or LPR who seek to enlist in the U.S. Armed Forces. This allows family members to adjust to LPR and get their green card as an immediate family member much sooner than waiting for the enlistment to be completed.

Border Security and Enforcement

While much of the attention on President Obama’s new policies were focused on changes and expansion of the deferred action program, President Obama also addressed border security and enforcement in his plan. During his announcement, the President called for the creation of a joint task force as part of the Southern Border and Approaches Campaign Plan. The President also announced that the Secure Communities will no longer exist. This program was a federal/state immigration enforcement partnership where fingerprinting from police arrests was shared with DHS. The new policy now asks police to notify ICE before the individual is released from custody and that only where “special circumstances” exist or a prior removal order or probable cause exists to keep the person detained will police be requested by ICE to hold onto the individual.

The final security issue President Obama addressed in his announcement is the new enforcement priorities and prosecutorial discretion guidance. On January 5, 2015, there will be new categories for the enforcement priorities of ICE and CBP. These categories are: (1) those apprehended at the border, are a nation security threat, those who have been convicted for or who have intentional participation in gangs, or those who have a conviction for a felony or an “aggravated felony”; (2) those with a conviction for a “significant misdemeanor” or three or more misdemeanors not arising from the same incident, as well as “recent” illegal entry or reentry (after 1/1/14), or those who significantly abused the visa or visa waiver program; and (3) those with an issuance of a final order of removal on or after January 1, 2014. The key change here is that CBP will now take an active role in the implementation of the prosecutorial discretion policy, and given the increasing role that CBP arrests and expedited removals play in immigration enforcement, strict monitoring of the implementation of these changes will be necessary.

These changes are significant and affect the lives of millions of people in the U.S. You can follow our website to find out more as these changes are implemented.