Immigration Executive Action: What We Know Following Pres. Obama’s Announcement on November 20, 2014.

Immigration reform has been a hot topic for several years in the press, on political campaigns, and among legal scholars. Despite all the attention, Congress has yet to enact any comprehensive legislation to address the considerable shortcomings in the U.S. immigration system. In what has already become a highly controversial move, on November 20, 2014, President Obama announced an executive action plan that will change the way many undocumented immigrants are treated by the U.S. government. Details surrounding the changes are still forthcoming, but the U.S. Department of Homeland Security (DHS) has identified ten ways the nation’s immigration system will be affected:

• Increased attention to securing the U.S. southern border
• Prioritized removal of undocumented immigrants who pose the greatest risk to public safety
• Replacement of the “Secure Communities Program” with one that more closely aligns with new immigration priorities
• Assurances that immigration enforcement officers will receive salaries commensurate with other law enforcement personnel
• Expansion of the Deferred Action for Childhood Arrivals (DACA) Program
• Extension of deferred action to parents of U.S. citizens and lawful permanent residents
• Expansion of the Provisional Waiver Program to spouses and children of lawful permanent residents
• Revision of Parole Rules
• Increased promotion of the naturalization process
• Added Support for high-skilled business and workers

Although complete details behind these policy changes have yet to be released, DHS has already begun to provide some guidance.  From what we know already, it is clear that some of these changes will have far-reaching effects. Most notably, the expansion of DACA and the extension of deferred action to parents of U.S. citizens and lawful permanent residents could help millions of currently undocumented immigrants to obtain work authorization as well as a temporary peace of mind—knowing that they are no longer threatened with immediate removal.

It is important to keep in mind that deferred action (both the deferred action available under DACA, and the deferred action recently extended to parents of U.S. citizens and permanent residents) is not the same thing as legal status under U.S. immigration law. Unlike citizenship or permanent resident status—which  both provide an immigrant with a permanent set of rights, including the right to live in and work in the United States—deferred action is only a temporary exercise of prosecutorial discretion.  By granting deferred action, the executive branch of the U.S. government is simply acknowledging that it will not pursue removal actions against certain individuals for a limited period of time. During that time, those who are granted deferred action can be authorized to work in the United States.  Deferred action also stops the clock for accruing “unlawful presence” for purposes of other areas of immigration law.

The DACA program only applies to certain immigrants who can demonstrate that they meet a very specific set of requirements set forth in the form I-821D.  Until now, those requirements included demonstrating that the applicant:  1) entered the U.S. before reaching the age of 16; 2) was born after June 15, 1981 (under 31 years of age as of June 15, 2012); and 3) was already present in the U.S. before June 15, 2007.  Under the new executive order, DACA will be available to undocumented immigrants who entered the U.S. before reaching the age of 16, regardless of when they were born.  Additionally, DACA will be available to those who entered the U.S. before January 1, 2010. The other requirements set forth in the form I-821D will remain in place.

to a felony attorney the extension of deferred action to parents of U.S. citizens and lawful permanent residents will mirror the DACA program in many respects. Though each applicant will be considered on a case by case basis, deferred action will be made available to those who can demonstrate that they:

• Are not the type of undocumented immigrants who have been prioritized for immediate removal (e.g. they do not represent a threat to national security, they have not been convicted of a felony, significant misdemeanor, or multiple misdemeanors, they have not been involved in a gang, etc.)
• Have been physically present in the U.S. for at least the last five years;
• Have children who are either U.S. citizens or lawful permanent residents; and
• Do not present any other factors that would make deferred action inappropriate.

Many of the other recently announced changes could have far-reaching effects as well. The extent of those changes will become clearer as additional information is released and as federal agencies begin to implement these new policies. The immigration lawyers at Gunderson, Denton & Peterson, P.C. work hard to stay up to date on the most current changes in immigration law and are experienced in dealing with the array of federal agencies that operate within the U.S. immigration system. If you have any questions regarding the recent executive action announced by President Obama, please contact our office.

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Gunderson, Denton & Peterson, P.C. – Brent Gunderson

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