In late 2014, President Barack Obama announced his “Immigration Accountability Executive Actions,” aimed at reforming the encumbered immigration system. The reforms aim to: (1) deal responsibly with the undocumented immigrant population; (2) devote additional resources to law enforcement to stem illegal border crossings; (3) improve the adjudicatory process for family and employment petitions; and (4) ensure that highly skilled immigrants and entrepreneurs can contribute to the economy. A debate is being waged regarding the effects of the executive actions. Proponents tout ameliorative socioeconomic effects, while opponents decry a thinly veiled grant of amnesty. In this landscape, it is important to understand the intent and effect of the executive actions.
Reforms pertaining to individuals and families provide relief to certain undocumented persons as follows: a “deferred action” program for qualifying subset of the undocumented population; border security and enforcement initiatives; and revision of existing processes for adjudicating petitions brought by families and businesses.
“Deferred action” is a temporary reprieve from enforcement of immigration laws. Applicants must meet eligibility criteria, submit biometric data and pass background checks. Successful applicants will be eligible to apply for work authorization. Upon expiration of deferred action status after three years, beneficiaries may become subject to deportation.
Two classes of eligible persons may obtain deferred action. First are unauthorized parents of a U.S. citizen or lawful permanent resident child born on or before Nov. 20, 2014. Under the “Deferred Action for Parental Accountability,” qualifying applicants must demonstrate that they have lived in the U.S. continuously prior to Jan. 1, 2010, and can demonstrate their presence in the U.S. on Nov. 20, 2014, as well as on the date of application.
The second category applies to persons who entered the U.S. as young children with their foreign national parents. Under the existing Deferred Action for Childhood Arrivals, qualifying persons, under the age of 31 at the time of applying who came to the U.S. as children, may request a two-year period of deferred action and obtain work authorization. The executive actions contemplate expansion of DACA such that individuals will now be eligible if they entered the U.S. before Jan. 1, 2010; can demonstrate continued presence since; and if they were under age 16 upon entry.
Improving border security and enforcement
The executive actions also seek to reinforce and shift current border enforcement initiatives by creating additional joint tax forces aimed at integrating and coordinating the efforts of various government agencies as well as seek funding for 20,000 additional border agents.
The executive orders have eliminated the Secure Communities program, under which undocumented persons who were arrested could be held for up to five days by local law enforcement, pursuant to a “detainer” requested by Immigration and Customs Enforcement, or Customs and Border Protection. The executive actions now require ICE to request notification before an arrestee is released. Where the arrestee is subject to removal, or if probable cause warrants, ICE can then request a detainer.
Further, the executive actions also explicitly prescribe enforcement priorities for CBP, including persons apprehended at a border; persons who pose a national security threat; persons with felony or aggravated felony convictions; persons who recently entered or reentered the U.S. illegally (after Jan. 1, 2014); and persons who have committed significant abuse of a visa or visa waiver.
Until 2013, immediate relatives of U.S. citizens who were present within the U.S. were ineligible to apply for lawful permanent resident status due to their unlawful entry. Such a person could only remedy the deficiency by leaving the U.S. and obtaining a waiver of the inadmissible status that attached as a result of his/her prior unlawful presence. In 2013, a provisional waiver program was launched, under which eligible persons could obtain “pre-approval” of an unlawful presence waiver from within the U.S. An applicant who successfully obtained a preapproval unlawful presence waiver would then leave the U.S., undergo a visa interview at the U.S. Consulate in his/her home country and, if approved – meaning that the consulate found no other basis for inadmissibility, with the exception of the prior unlawful presence – the applicant would receive an immigrant visa relatively quickly. The new reforms will expand the categories of eligible persons to reach spouses and children of lawful permanent residents and sons and daughters of U.S. citizens.
Business and employment expansion
In addition, the president’s executive actions seek to remove impediments to economic advancement and business expansion. For example, the executive actions will provide pathways to aid foreign entrepreneurs in legally entering the U.S. marketplace. Qualifying inventors, researchers and founders of startup enterprises will be allowed to enter the U.S., pursuant to a national interest waiver, provided that they can demonstrate that they show a certain level of investment funding.
Before the executive actions, individuals with approved employment-based immigration petitions were barred from filing for adjustment of status until a green card was available for issuance. Considerable backlogs for skilled workers from certain countries resulted in years-long wait times. Affected workers remained “in limbo,” unable to assume new jobs or promotions until the green card became available.
The executive actions now ensure that skilled workers who have already received approval of their employment-based petitions will be able to file adjustment of status applications, provided that no exceptions attach for their category of skilled work. These persons will be placed in the position of having filed an adjustment application, rendering them free to change jobs or accept promotions without fear of jeopardizing their application process or having to complete the process anew.
Where U.S. employers are unable to find specific business skills and abilities domestically, the H1-B program authorizes the temporary employment of qualified foreign nationals who are not otherwise authorized to work in the United States. Currently, spouses of persons in H1-B status are not permitted to work in the U.S., which diminishes incentives for highly skilled foreign workers to choose to work in the U.S. The executive actions will permit certain spouses of H1-B status holders to work legally.
Other objectives served by the executive actions aim to provide relief to employers. For instance, the executive actions will aid employers in retaining U.S.-educated foreign students who have completed or are completing hands-on practical training in their fields of study. Another subset of objectives will clarify existing criteria and legal standards that are weighed in adjudication of immigrant and nonimmigrant petitions.•
Wandini Riggins is an attorney with Lewis Wagner LLP in Indianapolis. She focuses her practice on family- and employment-based immigration, insurance defense litigation, premises liability defense and appeals. The opinions expressed are those of the author.