President Obama Announces Executive Action on Immigration Reform

20 Nov, 2014

Press Releases

Approximately 5 million unlawful immigrants to obtain relief from deportation.

In a primetime address tonight, President Obama announced a number of actions that the administration will take to overhaul the immigration system. The most controversial and far-reaching initiatives will provide relief from removal (deportation) for approximately 5 million unlawful immigrants. Specifically, the President will:

  • Create a new Deferred Action for Parents (DAP) program for parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010.
  • Expand the Deferred Action for Childhood Arrival program by removing the age cap, and advance the date when continuous presence must have started, from June 15, 2007, to January 1, 2010.

The White House has provided few specifics about the initiatives. The Department of Homeland Security is expected to provide additional details in the weeks and months ahead, but the government did release fact sheets and background information that shed light on upcoming changes:

Enforcement Reform

  • The President will shift resources to the border and will focus on recent border crossers.
  • Secretary of Homeland Security Jeh Johnson is announcing a new Southern Border and Approaches Campaign Plan.
  • The Department of Justice is announcing a package of immigration court reforms that will address the backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet new DHS-wide enforcement priorities and close cases of individuals who are low priorities.
  • DOJ will also pursue regulations that adopt best practices for court systems to use and limit court hearing time as efficiently as possible.
  • The Department of Labor (DOL) will expand and strengthen immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations.
  • Secretary Johnson is issuing a new DHS-wide memorandum that makes clear that the government’s enforcement activity should be focused on national security threats, serious criminals, and recent border crossers.
  • Secretary Johnson is replacing the existing Secure Communities program with a new Priority Enforcement Program (PEP) to remove those convicted of criminal offenses.

Relief for Undocumented Immigrants

DHS will take action to grant relief from removal (deportation) and work authorization to over 4 million unlawful immigrants. The following is a summary of the two programs that were announced tonight:

  • DHS will establish a new deferred action program for parents of U.S. Citizens or lawful permanent residents (LPRs) who have been in the country for more than five years. Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement. This would benefit approximately 4.1 million individuals.
  • Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children, and met specific education and public safety criteria were eligible for temporary relief from deportation so long as they were born after 1981 and entered the country before June 15, 2007. DHS will expand DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.

High-Skilled Immigration

Shortly after the Presidential address, Secretary Johnson issued a memorandum to the Director of U.S. Citizenship and Immigration Services and the Acting Director of U.S. Immigration and Customs Enforcement, instructing them to take actions to improve policies related to high-skilled businesses and workers. Specifically, the Secretary wrote that:

Green Cards

  • USCIS should work with the Department of State to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas (i.e. that immigrant visas do not go unused in the future).
  • USCIS should work with the Department of State to improve the system for determining when immigrant visas are available to applicants during the fiscal year. The Secretary wrote that the Department of State has agreed to modify its visa bulletin system to more simply and reliably make such determinations. These changes could, when implemented, result in advancement of green card priority dates.
  • USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.

Foreign Graduates

  • Immigration and Customs Enforcement (ICE) and USCIS should develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates, consistent with law.
  • ICE and USCIS should improve the OPT program by requiring stronger ties to degree-granting institutions, which would better ensure that a student’s practical training furthers the student’s full course of study in the United States.
  • ICE and USCIS should take steps to ensure that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.

Entrepreneurs

  • USCIS should issue guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S economy.
  • USCIS should propose a program that will permit DHS to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.

L-1 Policy Guidance

  • USCIS should issue a policy memorandum that provides clear, consolidated guidance on the meaning of “specialized knowledge.”

Portability for Adjustment Applicants

  • USCIS should issue a policy memorandum that provides additional agency guidance with respect to the types of job changes that constitute a “same or similar” job under the portability provisions of AC21.

The White House has also stated informally that other changes to the employment-based immigration system are under consideration, including:

  • Finalizing the regulation that would allow H-4 spouses who are in the green card process to obtain work authorization.
  • Clarifying which employers are exempt from the H-1B cap.

The Department of Labor also issued a Fact Sheet indicating that it will be initiating a review of the PERM program and relevant regulations. The Department will seek input on the following:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses.
  • Methods and practices designed to modernize U.S. worker recruitment requirements.
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers.
  • Ranges of case processing timeframes and possibilities for premium processing.
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

Other Changes

  • DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain immigration violations before departing the U.S. to attend visa interviews.
  • DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”).
  • The President will create a White House Task Force on New Americans to create a federal strategy on immigrant integration.
  • DHS will launch a comprehensive citizenship awareness media campaign in the ten states that are home to 75 percent of the overall LPR population. USCIS will also expand options for paying naturalization fees and explore additional measures to expand accessibility, including studying potential partial fee waiver for qualified individuals.
  • DHS will expand an existing policy to provide relief to spouses and children of U.S. citizens seeking to enlist in the military, consistent with a request made by the Department of Defense.

BAL Analysis

At this time, the White House and the Department of Homeland Security have offered few details regarding the initiatives that may affect foreign graduates of U.S. universities and high-skilled workers. In particular, the government has provided no timeline for implementation or any prioritization of the numerous initiatives. While some of the concepts could be implemented via policy guidance within a few months, others may require rulemaking that could push implementation into 2016.

BAL has been in extensive discussions with the White House and the agencies over the past few months, and the firm will continue that dialogue as the agency moves from concept development to implementation.

 

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.