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OK, to close the proverbial loop on President Obama’s administrative “fix” of our “broken immigration system”, here’s a few other things that the President announced on November 20, 2014. For more details on all aspects of this Executive Action, please see my two previous blog posts.
Provisional Waivers. This was a biggie, and just about the day after the President’s announcement, I had someone walk into my office who will benefit under this provision (once implemented). The President has decided to expand an earlier program his administration put into place which provides for “provisional waivers” of the 3- and 10-year unlawful presence bars on the admission of aliens who have accrued more than 180 days of unlawful presence in the United States. Currently, this program only assists the spouses, sons, or daughters of U.S. citizens. Under the President’s proposed expansion, it will now also benefit qualifying relatives of lawful permanent residents (i.e., Green Card holders).
Miscellaneous. The President also announced several other initiatives, not all of which can be neatly categorized I have done in earlier blogs. First, the President announced some personnel reforms involving immigration and customs officers. He also is trying to promote naturalization for eligible Green Card holders by, for example, directing U.S. Citizenship and Immigration Services (“USCIS”) to start accepting credit cards for paying naturalization fees, to consider partial waivers of naturalization fees in its next biennial fee study, and to launch a comprehensive media campaign to promote naturalization. He also is establishing an interagency task force on “New Americans” so as “increase meaningful engagement” between immigrants and the communities where they settle. Finally, the President is also establishing an interagency working group to address the interplay of immigration and employment law. I personally think it will be interesting to see what develops out of this last one.
As I have previously said, it seems clear to me that what President Obama announced was very necessary and very welcome, even if the manner in which it did it was controversial (along obviously with what he did). Last week, the House of Representatives passed a funding bill for the U.S. Department of Homeland Security that defunded his initiatives. Although the measure passed, interestingly, 26 Republicans voted against Rep. Marsha Blackburn’s amendment which would have defunded the President’s original 2012 Deferred Action Against Childhood Arrivals (“DACA”) initiative. This bill is now on to the Senate, where I doubt it will pass, but it certainly create a forum for debate that may very well impact the 2016 presidential elections. Let’s see what happens.
So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here. But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers. Here’s a brief overview.
1. Immigrant Visa Issuance. The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system. Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year. Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable. The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.
2. Optional Practical Training. The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas. The President also proposed to expand the degree programs eligible for OPT.
Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study. In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT. However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.
3. Aliens Whose Admission to the United States is in the National Interest. The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”
4. Inventors, Researchers, and Founders of Start-up Enterprises. The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.
5. L-1B Specialized Knowledge Aliens. For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program. The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.
6. I-140 Portability under AC21 §106(c). The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.
7. Labor Certification (“PERM”) Modernization. The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers. More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.
8. Human Trafficking and Crime Victims. The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.
The President announced other initiatives too (which I will write about at a later time). As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was). It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).
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.
As I write this piece, summer is slowly turning into fall, the leaves are just starting to change their colors, and Congress has come back to work from its summer recess. Comprehensive Immigration Reform (“CIR”) is only slightly closer to reality than it was since the U.S. Senate passed a marked-up and amended version of the Gang of Eight’s Border Security, Economic Opportunity, and Immigration Modernization Act. The House of Representatives continues to take baby-steps toward a piecemeal approach at CIR. We’ll see what happens there.
So, instead of focusing on what’s going on in Washington, D.C. in terms of CIR, I thought it might be interesting to take a different approach for this month’s article. That is, what’s been going on at the state level on the immigration front?
The National Conference of State Legislatures (“NCSL”) recently reported that “[a]s of June 30, 2013, state legislatures had already exceeded the number of laws and resolutions enacted in all of 2012. In the first half of 2013, lawmakers in 43 states and the District of Columbia enacted 146 laws and 231 resolutions related to immigration, for a total of 377. This is an 83 percent increase from the 206 laws and resolutions enacted in the first half of 2012.”
The issues touched upon nationwide have been expansive: education, employment, health, human trafficking, ID’s and driver’s licenses, law enforcement and public benefits, to name just a few.
I started out this column noting that our immigration system is badly broken at the federal level. The fact that the states, therefore, have responded by passing their own patchwork of laws attempting to regulate immigration, typically considered to be within the exclusive jurisdiction of the federal government, makes the situation even worse.
The reason for this uptick in state-sponsored immigration legislation is reported to be two-fold. First, in 2012, states seemed to wait for the outcome of the U.S. Supreme Court decision in Arizona v. United States. On June 25, 2012, the Supreme Court overturned three of four provisions in Arizona’s S.B.1070 regarding that states authority in immigration enforcement.
Second, just a couple of few weeks earlier than the Supreme Court’s decision, the Obama Administration issued a new policy on deferred action for childhood arrivals (commonly known as “DACA”). On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States as children and who meet several key guidelines could request consideration of deferred action for a period of two (2) years, subject to renewal, and could also be eligible for work authorization. Deferred action is a discretionary determination by the Department of Homeland Security (“DHS”) to defer the removal action of an individual as an act of prosecutorial discretion. Deferred action does not, however, provide an individual with lawful status.
According to the NCSL, a number of state-enacted immigration laws have been quite positive. For example, Colorado, Minnesota and Oregon extended in-state tuition benefits to unauthorized immigrant students. As of this writing, 15 states now offer this benefit. Other states took up driver’s license eligibility, beginning with California in the fall of 2012, and Colorado, Connecticut, Georgia, Illinois, Maryland, Maine, Nevada, Oregon and Vermont in 2013.
What’s going on in New York thus far in 2013? As of June 30, 2013, our state legislature considered four pieces of immigration-related legislation, three of which were passed.
First, the controversial Secure Ammunition and Firearms Enforcement Act (commonly known as the “New York SAFE Act”) amended gun licensing restrictions to include the consideration of citizenship or immigrant status (i.e., generally preventing the issuance or renewal of a license under the act to an alien not legally or lawfully in the United States).
Within the state budget, there were two immigration-related provisions. First, there was a provision which related to an electronic information sharing system that allows for the exchange of criminal history records for noncriminal justice purposes authorized by federal or state law, and defines noncriminal justice matters to include the use of criminal history records for purposes other than criminal justice matters, including immigration and naturalization matters. The state budget also included a provision which amended eligibility for unemployment benefits for illegal aliens; that is, illegal aliens or immigrants working without legal permission cannot obtain unemployment benefits.
By line item veto, Governor Cuomo vetoed a provision in the state budget which would have included funds for language classes for limited English proficient and immigrant students.
The NCSL also reported that the largest spike in immigration-related activity at the state level was in passage of non-legislative resolutions. That is, 31 states adopted 231 resolutions covering a myriad of issue areas. Twenty five sought action from Congress or the Obama Administration, including eight resolutions related to passing CIR. Others asked Congress to reauthorize the Violence Against Women Act (which it did), among other important areas.
Once again, the fact that the states are passing their own immigration related laws and resolutions is proof positive that our immigration system is broken at the federal level, and CIR is desperately needed. The Senate has already spoken. House Judiciary Committee Chairman Bob Goodlatte recently was quoted as saying that congressional fights over Syria and the debt limit “should not deter us from getting to [immigration] as soon as possible.” He said his committee and others have already passed smaller immigration bills relating to border security, internal enforcement, guest workers, and high-tech visas, and there could be votes on these measures as soon as October. Notably, there’s still no path to citizenship (or even a lawful immigration status) in the House bills that have passed for the eleven to thirteen million undocumented immigrants in the United States. I guess we’ll have to continue to wait and see what happens.