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Immigration Reform by Executive Action: What Did Obama Actually Do?

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So, the President finally did it.  On November 20, 2014, President Obama announced a series of actions (not executive orders as it turns out) that his administration is taking to “fix” what he has repeatedly described as a “broken immigration system.”  These actions involve, among other areas, border security, providing a temporary status (commonly called “deferred action”) for some aliens who are currently unlawfully present in the United States, and future legal immigration.  So what did the President actually do?  I’m glad you asked.

Border Security.  Likely to placate those on the right, and certainly consistent with this Administration’s record level of deportations, the President announced he is implementing a “Southern Border and Approaches Campaign Strategy” which the Administration argues will “fundamentally alter” the way in which it marshals resources to the border.  We’re informed that this will involve the U.S. Department of Homeland Security (“DHS”) commissioning of three (3) task forces, consisting of various law enforcement agencies, which will focus on the southern maritime border, the southern land border and West Coast, and investigations to support the other two task forces. The primary objectives of this new strategy is increasing the risk of engaging in or facilitating illegal transnational or cross-border activity, interdicting people who attempt to enter illegally between ports of entry, and preventing the illegal exploitation of legal flows (e.g., alien smuggling at ports of entry).

Aliens Unlawfully Present in the United States.  The centerpiece of President Obama’s announcement, and no doubt the most controversial, is to grant deferred action (basically temporary relief from removal) to some aliens who are unlawfully present in the United States (i.e., those who were brought to the United States as children and raised here, or those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”)).

In addition, President Obama expanded a program his administration announced in June 2012, known as Deferred Action for Childhood Arrivals (“DACA”).  That program allowed aliens who were unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.  DACA, as originally proposed, expressly excluded aliens who were unlawfully present aliens and who were over 31 years old, or who had entered the United States on or after June 15, 2007.  Under President Obama’s recent action, aliens who are over 31 years old, or entered the United States between June 15, 2007, and January 1, 2010, could receive deferred action.  The President’s recent initiative would also extend the duration of grants of deferred action (and work authorization) received by DACA beneficiaries from the current two years, to three years.

As noted above, aliens who are unlawfully present in the United States who have children who are U.S. citizens or LPR’s will also be eligible for deferred action (and employment authorization) provided they can show (1) “continuous residence” in the United States since before January 1, 2010, (2) physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they apply for deferred action, (3) not being an enforcement priority under the administration’s newly announced priorities, and (4) they present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.  Individuals who are granted deferred action pursuant to the President’s initiatives, or otherwise, are eligible for employment authorization provided they can show “an economic necessity for employment.”

There were other provisions which addressed aliens who are unlawfully present in the United States too, but these are the big ones.

Legal Immigration.  The President also announced certain initiatives intended to affect aliens who are lawfully present in the United States, and which was described by the President as supporting high-skilled business and workers.  One such provision is to ensure that all immigrant visas (basically “Green Cards”) which are authorized by Congress in a given fiscal year are actually issued.

Yet another initiative that the President announced is expanding the duration of “optional practical training” (“OPT”) available to F-1 nonimmigrant students in the United States studying science, technology, engineering, and mathematics (“STEM”) fields at institutions of higher education in the United States, as well as expanding the actual degree programs that are eligible for OPT.

Again, there were other provisions which the President announced in this category.

I realize the President’s actions are very controversial, and a lot of people are unhappy with them.  As I’ve said before, and I’ll say it again, our immigration system is broken and it desperately needs to be fixed.  In a perfect world, Congress would pass meaningful, comprehensive and bipartisan legislation, and send it to the President for his signature.  That has not happened for way too long. So I suppose this is the next best thing.


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ABOUT THE CONTRIBUTOR

David W. Meyers, Esq. is managing partner of Meyers & Meyers, LLP. David works with individuals, businesses and higher education institutions helping them resolve any issues regarding immigration, citizenship and naturalization for themselves or their employees.

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