Understanding Key Components of President Obama’s Executive Actions on Immigration

On November 20, 2014, President Obama announced his “immigration accountability executive actions,” which outlined steps to reform issues within our nation’s immigration system. The executive actions are considered “prosecutorial discretion,” a term relating to the executive branch’s ability to choose how to enforce the law. One example of prosecutorial discretion in the immigration law context is “deferred action,” which provides a temporary lawful status for those who qualify. While touted as an unconstitutional act by some members of the Republican Party, in reality, prosecutorial discretion in our nation’s immigration history has been undertaken by previous Presidents, most notably President Ronald Reagan and President George H.W. Bush.

President Obama’s executive actions cover critical pieces in our immigration system, including enforcement at the border, deportation priorities, efficiency in keeping and recruiting immigrant investors and employees, allowing immigrant families to remain intact, and expansion of lawful status for those living here unlawfully. Two of the biggest programs within the executive actions were the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the introduction of the Deferred Action for Parental Accountability (DAPA) program.

DACA was initially introduced by the Obama Administration in 2012 as a response to the failure of the DREAM Act to pass in Congress. As referenced in the name, DACA allowed individuals who arrived in the United States as children to remain and work here legally. Individuals who had been present in the United States for at least 5 years, who arrived before they turned 16 years old and who were under 31 years old, and who were currently in school or received a degree from school, could apply for deferred action. While not granting permanent status, DACA allowed many individuals to apply for a social security number, obtain employment authorization, and be protected from deportation for at least 2 years. Since its inception, over 500,000 individuals have received deferred action under DACA.

The Obama Administration expanded the DACA program by removing the age cap requirements and allowing those who have been present since January 1, 2010 to qualify. Additionally, DACA grantees will have deferred action and work authorization for 3 years instead of 2 years. It is estimated that an additional 330,000 individuals will be eligible under the new criteria. Applications under the new DACA program are expected to be available by February 18, 2015.

While DACA was a real first step in addressing the needs of those living without status in the United States, there were still challenges and deficiencies to overcome. Although DACA provided work authorization and the ability for young adults to “step out of the shadows,” many other young immigrants still feared for their parents and other family members who did not qualify for DACA and who lived in unlawful status. In recognition of the need to keep families intact, President Obama created the DAPA program.

DAPA applies to individuals who have US citizen or lawful permanent resident (“green card”) sons or daughters, who have been present in the US since January 1, 2010, and who are not considered an enforcement priority. DAPA grantees obtain deferred action for 3 years, which includes work authorization and a social security number. Applications are expected to be ready by May 20, 2015. It is estimated that as many as 3.7 million immigrants could be eligible for lawful status under the DAPA program.

DACA and DAPA provide temporary relief. It is not a grant of permanent status or US citizenship. Only Congress has the ability to determine who is eligible for lawful permanent residence or who can become a US citizen. While threats of defunding the DACA and DAPA programs have been alluded to in talking points, and even included in a bill that passed the House on January 14, in reality, the programs pay for themselves through a $465 filing fee and are not subject to Congress’ appropriations.

In addition to the DACA expansion and the creation of DAPA, President Obama outlined other changes to immigration benefits, processing, and enforcement. Some additional benefits include longer periods for Optional Practical Training for foreign students who graduate from US schools, review of the Department of Labor’s certification process for foreign labor, and increased opportunities for foreign investors, researchers, and start-ups to create jobs in the US. The President also wants to improve the current visa system, which is rife with delays and high processing times. For example, under our visa system currently, adult children of US citizen parents will be waiting almost 8 years until they are eligible to enter the US and reunite with their family. For adult sons and daughters from the Philippines, their wait is over 10 years. Even spouses and children of green card holders are waiting almost 2 years until they become eligible to enter the United States.

President Obama has increased and refined his immigration enforcement policies in the executive actions as well. First, President Obama outlined new enforcement priorities, divided into three tiers. The highest priority relates to individuals with felonies and aggravated felonies; the second priority applies to those with “significant misdemeanors” or multiple misdemeanors in their background or are recent border-crossers; and the last priority relates to individuals ordered removed after January 1, 2014. While the crimes sound serious (and many are), under immigration law, a single conviction for a driving under the influence (DUI) charge is considered a significant misdemeanor and would place someone in the second priority tier.

President Obama is also removing the controversial Secure Communities program, which encouraged state and local law enforcement agencies to enforce federal immigration laws. Under the Secure Communities program, the Department of Homeland Security could request that state or local jails hold immigrants longer than is constitutionally allowed so that they could be transferred to immigration custody. Many Governors, law enforcement agencies, and mayors, including Mayor Michael Nutter of Philadelphia, rejected participation in the program. In place of Secure Communities, the Obama administration is creating the Priority Enforcement Program, which would not use unlawful detainers and will only seek out those immigrants who have actually been convicted of crimes, rather than simply arrested or held for alleged crimes. And finally, President Obama is allocating more resources to secure the southern border.

Some of the President’s proposed changes have already taken place, while others need more time to be evaluated or begin. While this is a hopeful first step in reforming our immigration system, Congress still must act to ensure a comprehensive solution, rather than piecemeal changes, are put in place. Our nation built by immigrants deserves no less.

Reprinted from VOICES Feb 2015 with permission

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