Obama Takes Executive Action on Immigration

Shortly after the mid-term elections, President Barack Obama initiated several executive actions on immigration.

As outlined in a series of Department of Homeland Security memoranda, the executive actions include, among other things:

• Supporting high-skilled business and workers. The Department of Homeland Security (DHS) will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, DHS notes, “because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.”

  Some of the actions called for in the memo include: 

• U.S. Citizenship and Immigration Services (USCIS) working with the Department of State (DOS) to improve the system for determining when immigrant visas are available to applicants during the fiscal year. DOS has agreed to modify its visa bulletin system “to more simply and reliably make such determinations,” and the memo states an expectation that USCIS will revise its current regulations “to reflect and complement these proposed modifications.”
• USCIS considering “amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where [beneficiaries] seek to change jobs or employers.”
• U.S. Immigration and Customs Enforcement (ICE) developing regulations for notice and comment to expand the degree programs eligible for Optional Practical Training (OPT) and to extend the time period and use of OPT for foreign STEM (science, technology, engineering, and mathematics) students and graduates.
• USCIS issuing guidance or regulations to clarify the standard for granting a national interest waiver green card, with the aim of promoting its greater use.
• USCIS proposing a program allowing parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for national interest waivers but “who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.” The regulation will include income and resource thresholds.
• USCIS issuing a policy memorandum to provide “clear, consolidated guidance” on the meaning of “specialized knowledge” in adjudicating L-1B petitions.
• USCIS issuing a policy memorandum providing guidance on worker portability, specifically with respect to what constitutes a “same or similar” job, with a goal of removing “unnecessary restrictions” on “natural career progression.”

  The memo explaining these actions is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf.

• Enforcement efforts, including commissioning three Joint Task Forces. Joint Task Force East, Joint Task Force West, and Joint Task Force Investigations. All three will incorporate elements of the U.S. Coast Guard, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. Joint Task Force East will be responsible for the southern maritime border and approaches. Joint Task Force West will be responsible for the southern land border and the West Coast. Joint Task Force Investigations will focus on investigations in support of the geographic Task Forces.

  The overarching goals of the Southern Border and Approaches Campaign, of which the Joint Task Forces are a part, will be to enforce immigration laws and interdict individuals seeking to enter the U.S. without authorization; degrade international criminal organizations; and decrease the threat of terrorism. The memo explaining these actions is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_southern_border_campaign_plan.pdf.

• Ending the Secure Communities program and replacing it with the Priority Enforcement Program, and prioritizing criminal offenses for arrest, detention, and removal. The memos explaining these actions are available at here and here.
• Expanding Deferred Action for Childhood Arrivals (DACA) to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the United States before the age of 16, and not just those born after June 15, 1981. The entry date will be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. The memo explaining this action is available at .
• Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), will include individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases. The memo explaining this action is available at .
• Expanding I-601A provisional waivers to spouses and children of lawful permanent residents. The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, the administration will further clarify the “extreme hardship” standard that must be met to obtain the waiver. The memo explaining this action is available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf.
• Revising parole rules. DHS will begin rulemaking to identify the conditions under which “talented entrepreneurs” should be paroled into the United States, on the ground that their entry would yield a “significant public economic benefit.” DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given advance parole to leave the United States, including those who obtain deferred action, they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart. The memos explaining these actions are available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf (entrepreneurs), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf (parole-in-place and deferred action), and http://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf (advance parole).

President Obama also issued a memorandum directing the Secretaries of State and Homeland Security, in consultation with other federal agencies, to develop recommendations for improving the U.S. visa system. The recommendations will be developed in consultation with “business people, labor leaders, universities, and other stakeholders.” The recommendations will be geared toward streamlining and improving the legal immigration system—including immigrant and non-immigrant visa processing—”with a focus on reforms that reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system.”

In consultation with stakeholders with relevant expertise in immigration law, they will also develop recommendations “to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand.” In consultation with technology experts inside and outside the government, they will develop recommendations “for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.”

President Obama also announced that he is establishing a White House Task Force on New Americans, an interagency effort “to identify and support state and local efforts at integration that are working and to consider how to expand and replicate successful models.” The Task Force, which will engage with community, business, and faith leaders, as well as state and local elected officials, “will help determine additional steps the federal government can take to ensure its programs and policies are serving diverse communities that include new Americans.” Among other things, the Task Force will submit an “Integration Plan” to President Obama, which will include an assessment of the members’ agencies with respect to integration efforts, and recommendations. The Task Force will also identify and disseminate best practices at the state and local level, collect and disseminate data on immigrant integration, and provide technical assistance.

A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama’s legal authority to expand the DACA program and to establish the Deferred Action for Parental Accountability (DAPA) program. It is available at https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/executive-action-law-prof-letter.pdf.

President Obama also issued an “immigration blueprint,” outlined in “Building a 21st Century Immigration System,” which includes additional proposals. The blueprint is available at . The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info, are available at http://www.dhs.gov/immigration-action. Additional memoranda are available at http://www.whitehouse.gov/the-press-office/2014/11/21/presidential-memorandum-modernizing-and-streamlining-us-immigrant-visa-s (modernizing and streamlining the U.S. visa system) and http://www.whitehouse.gov/the-press-office/2014/11/21/presidential-memorandum-creating-welcoming-communities-and-fully-integra (establishing the White House Task Force on New Americans).