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Obama’s Executive Action : Expanding Deferred Action Initiatives to Unlawful Aliens

??????????????????????????????????????????????????????????????????????????????????????????????OK, so let’s break it down.  Clearly the centerpiece of President Obama’s administrative “fix” of what he has repeatedly described as a “broken immigration system” are his initiatives to grant “deferred action” (essentially, temporary relief from being removed or deported from the United States) to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here.  A second group of aliens unlawfully present in the United States who will benefit under the President’s actions are those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”, or “Green Card” holders).

Deferred Acton for Childhood Arrivals

So what are the specifics?  In June 2012, President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as Deferred Action for Childhood Arrivals (“DACA”), whereby aliens unlawfully present in the United States who had been brought to the United States as children and who met other criteria could receive “deferred action.”  In many cases, these individuals also received employment authorization.  Eligibility for DACA, however, expressly excluded aliens unlawfully present who were over the age of 31, or who had entered the United States on or after June 15, 2007.

On November 20, 2014, President Obama modified the DACA program by eliminating the age ceiling and making individuals who began residing in the United States before January 1, 2010 eligible.  Moreover, the President announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two.  We’re informed that those eligible under the new criteria should be able to apply within 90 days of the President’s announcement.

Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents

Hand-in-hand with the expanded provisions of DACA was the President’s announcement that his administration would also be granting “deferred action” to the parents of U.S. citizens and LPR’s.  This initiative is commonly called DAPA.  Like those eligible for DACA, some applicants for DAPA will be eligible for employment authorization too.

Specifically, aliens unlawfully present in the United States, and who have children who are either U.S. citizens or LPR’s, will also be eligible for deferred action (and employment authorization) pursuant to the President’s announcement.  To be eligible, in general, these aliens must be able to show “continuous residence” in the United States since before January 1, 2010, physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they request deferred action, (3) not being an enforcement priority under the administration’s newly announced enforcement priorities, and that they present no other factors that, in the exercise of discretion, would make the grant of deferred action inappropriate.

The Obama Administration estimates that approximately 5 million aliens unlawfully present in the United States could be directly affected by the expanded DACA and new DAPA initiatives.  However, the actual number who apply for benefits under either program may be much smaller, depending on outreach, access, cost, and numerous other factors.

So What did President Obama Actually Do?

Immigration reform has arguably become the third rail of politics.  Those on the political right will say that the President granted “amnesty” to all these aliens.  I suppose whether that’s true depends on what your definition of amnesty is.  I personally don’t believe that’s the case. Here’s what I can tell you.

A grant of deferred action is not “legalization” as that term is commonly understood in the world of immigration.  Legalization is typically a process whereby aliens who are unlawfully present in the United States acquire legal status, typically as LPR’s.  LPR’s can then typically apply for U.S. citizenship after a statutory period of time (and assuming they meet certain conditions).  That’s not at all what happened here.

Aliens granted deferred action are generally “lawfully present” in the United States under federal law.  That’s it.  They may also be eligible for certain benefits, like applying for driver’s license, but by and large, they would not be eligible for public benefits.

Being “lawfully present” in the United States is not the same as being in a “lawful status.” Aliens granted deferred action are not in a lawful status.  Thus, a grant of deferred action, in and of itself, does not result in an alien obtaining a Green Card, and as a result, such an individual cannot eventually apply for citizenship.  Indeed, aliens granted deferred action could conceivably have their status terminated by Congress in the future.

Of course, I personally hope this will not be the case, but one never knows.  The next two years may tell us a lot.  Politics is a funny 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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