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Who Will Benefit From Obama’s Immigration Plan?

Some 5 million immigrants stand to benefit from the President’s “Immigration Accountability Executive Actions” announced last November 20. Following his announcement, memoranda were released providing additional directives and explaining in more details his executive action on immigration.

DAPA

The President, through the program known as Deferred Action for Parental Accountability (DAPA), extended eligibility for deferred action to parents of U.S. citizens and lawful permanent residents.

Applicants for deferred action under this program must meet the following criteria: (1) have as of November 20, 2014 a son or a daughter who is a U.S. citizen or lawful permanent resident; (2) continuous residence in the U.S. since before January 1, 2010; (3) physical presence in the U.S. on November 20, 2014 and at the time the application requesting DAPA is submitted; (4) no lawful status as of November 20, 2014; and (5) not removal priority under the new policy and not have any other characteristics that would make deferred action inappropriate.

Applicants will also undergo a thorough background check of all relevant national security and criminal databases. If approved, deferred action will be granted for three years. Beneficiaries will also be granted work authorization.

The program is expected to protect from deportation around 4 million undocumented immigrants. The USCIS is set to begin accepting applications in about 180 days from November 20, 2014.

The Immigration and Customs Enforcement (ICE) is also directed to identify persons in custody who may be eligible under the program. ICE will also review removal cases of individuals who will qualify and seek termination of those cases.

EXPANDED DACA

The Deferred Action for Childhood Arrivals (DACA) program launched in 2012 will be expanded. Under the original program, individuals who were under 31 years old on June 15, 2012 and entered the U.S. before June 15, 2007 under the age of 16 were eligible to apply. The revised program eliminates the age cap of 31 which means that so long as the applicant meets all the criteria, the current age of the applicant would not matter.

The revised program also moves the eligibility cut-off date when an applicant must have been in the U.S. from June 15, 2007 to January 1, 2010.

Around 1.2 million individuals were eligible under the original DACA. The revised program is expected to cover an additional 270,000 immigrants. Applications under the new DACA program will be accepted starting around late winter and the DACA recipients will be granted deportation relief and work permits for 3 years.

EXPANDED PROVISIONAL WAIVER

The provisional waiver program will also 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. Under the original program announced in January 2013, only spouses and children of U.S. citizens were eligible to apply for provisional waiver. The USCIS will also provide guidance on the definition of “extreme hardship” and the factors to be considered in determining whether the “extreme hardship” standard has been met

MODERNIZING VISA SYSTEM

Included in the President’s executive action are directives for modernizing and streamlining the visa system. An estimated 200,000 skilled workers will be benefited. The USCIS and the State Department were directed to improve the system for determining when green cards are available to applicants each fiscal year.

In addition, the USCIS was also directed to change regulations so as to provide stability for beneficiaries of employment-based petitions more specifically ensuring that visa petitions remain valid when beneficiaries change jobs and clarifying “same or similar” job to allow beneficiaries to change jobs without fear of voiding their approved petitions.

A new regulation providing work permits for H-4 dependent spouses of H-1B visa holders who are in the process of obtaining green cards through employment will be published soon by the USCIS.

The Optional Practical Training (OPT) program will be expanded to include more degree programs and increasing the length of time foreign graduates pursuing STEM (science, technology, engineering and mathematics) professions, can spend on OPT status.

The USCIS was also directed to clarify regulations by which immigrant entrepreneurs can obtain national interest waiver.

The USCIS was also instructed to propose a program allowing the grant of parole to inventors, researchers and founders of startup companies, 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”. These are only a few of the President’s directives and instructions to improve the nation’s immigration system.

Obama Unveils Immigration Plan; GOP Vows To Fight It

President Obama unveiled his immigration plan last November 20 in a televised address from the White House. The GOP immediately vowed to counter the President’s executive action.

About five million undocumented immigrants would benefit from his plan. They include parents of children who are U.S. citizens or legal permanent residents. It also expands the 2012 DACA program that has deferred the removal of young immigrants. Most of the beneficiaries of the plan would be given work permits. More details of the immigration relief will be spelled out soon.

Speaker John A. Boehner (R-Ohio) said that the GOP will try to cripple the president’s action with legal challenges or cancelling their funding. He had said that the Republicans would “fight the president tooth and nail.” To this end, the GOP, which would control both House and Senate next year, could pass a bill defunding agencies responsible for the relief programs and immigration enforcement.

Congress is also scheduled to pass an omnibus spending bill by December 11, 2014. The measure should fund the government until October 2015; however, House Republicans are considering passing a short-term funding measure that will fund the government only through February next year. This will allow them to pass a bill that will prohibit disbursement of funds on processing of applications and work permits covered by the President’s executive order.

If Congress passes a short-term funding measure, many believe that a vote on another spending bill early next year could lead to “brinkmanship” such as threats to defund the government that could lead to a government shutdown. The President, however, relies on the word of Mitch McConnell, incoming Senate Majority Leader, that Republicans would not be shutting down the government.

Speaker House Boehner, on the other hand, warned “that all options are on the table.” A number of Republicans are also considering impeachment, including Rep. Steve King (R-Iowa) who had said that he will call for impeachment of the President for his executive action.

Before the President’s announcement, immigrant rights advocates had complained that any delay on the part of the President to exercise his executive authority would subject thousands of families to more suffering. Each year, about 400,000 have been deported. With the current enforcement policies in place, Obama has removed more than two million immigrants under his presidency.

America’s Voice Deputy Director Lynn Tramonte said “Every day that there’s no executive action over 1,000 families lose a loved one to deportation. It was not acceptable for them to delay this summer, this fall and certainly would not be acceptable for them to delay any further.”

Senators Harry Reid (D-Nevada), Richard Durbin (D-Illinois), Charles Schumer (D-New York), Patty Murray (D-Washington State), Robert Menendez (D-New Jersey), and Michael F. Bennet (D-Colorado) in their support letter to the President said that “Immigrant communities have waited too long for House Republicans to catch up with the American public’s support for comprehensive immigration reform. We strongly support your plan to improve as much of the immigration system as you can within your legal authority…”

Although the opposition from the GOP is mounting, the administration is relying on the support from immigrants which would make Republicans think twice as to their steps to derail his immigration plans.

The executive order issued by the President can be readily superseded by act of Congress. If Republicans are unwilling to fix the broken immigration system, they should, at the very least, not hinder the President to do what he can within his legal authority to improve it.

Obama To Provide Immigration Relief Soon

President Obama said last Sunday that he would go ahead with his plan to take action on immigration, despite the GOP’s warnings that any unilateral action on immigration would “poison the well” and “will hurt cooperation on every issue.” There are reports that he will announce his plan next week.

Republican leaders, including Senator John McCain, co-author of the 2013 Senate immigration reform bill, believe that with the shift of power in Congress, executive action by the President would hurt the chances of ever passing a comprehensive immigration reform bill.

The President, however, rejected their warnings and said that he had waited long enough for Congress to act on immigration reform. It has been over a year since the Senate passed the immigration reform bill and House Republicans have adamantly refused to vote on the bill.

The President has moved his timetable twice already since he announced his plan last March to use his executive authority. The first time was last May when he directed Homeland Security Jeh Johnson to delay changes in deportation enforcement to give Congress one last chance to pass the immigration reform bill. The second time was last September when he was pressured by Democrats in heavily leaning Republican states to postpone it until after the midterm elections.

The delay didn’t help Democrats as the Republicans went on to capture the Senate and expanded its majority in the House.

The President maintains that he is not bypassing Congress and he would prefer that Congress pass legislation on immigration reform. “The minute they pass a bill that addresses the problems with immigration reform, I will sign it and it supersedes whatever I take,” he said in an interview.

Immigrant rights advocates believe that the GOP members’ staunch opposition against the President’s plan to issue administrative orders to change current immigration policies calling it “amnesty” orders is without basis. The President by exercising his executive authority can only grant temporary reprieve from deportation and only Congress can provide legal status for the undocumented.

Should Congress wish to pass an immigration reform bill, they may very well do so. In fact, the President is encouraging Congress to pass an immigration reform bill and “on parallel track” he said, “we’re going to be implementing an executive action.”

This would not be the first time that executive action on immigration would lead up to legislation in Congress. Through the years, executive orders of many U.S. Presidents such as Presidents Kennedy, Truman, Ford, among others, granting parole and deferred action initiated in response to crises, have been ratified by Congress granting beneficiaries legal status through legislation.

There is no denying the urgent need to fix broken immigration system and to address the needs of the 11 million undocumented in the country. With the continued refusal of GOP house members to vote on the immigration reform bill which has been languishing in the House of Representatives far too long, the President’s executive action set to be announced as early as next week should be good prelude to a legislation on immigration reform from Congress.

Proposals for Executive Action On Immigration

President Obama promised to take action on immigration after the midterm election. Now that the election is over, the President is expected to announce his new immigration program. It is not yet certain what the policy changes will be but we are hopeful that it would include relief from deportation for millions of undocumented immigrants.

Many believe that just like the Deferred Action for Childhood Arrivals (DACA) program created in 2012, the Obama administration would identify sub-groups of immigrants who would be eligible for deferred action. Although the grant of deferred action does not grant legal status, it would protect undocumented immigrants from deportation and allow them to apply for employment authorization and travel document.

Immigrant rights advocates have appealed to the administration to adopt a blanket approach and grant deferred action to all those who would be eligible under the Senate bill. However, if this blanket approach is rejected, immigrant rights advocates have identified sub-groups of immigrants who should be included under a new program.

Immigrants who already have an approved family and work-related visa petitions but who are unable to adjust their status because of visa backlogs should be granted deferred action. Many of these immigrants are subject to the three or ten year bar rule because of unauthorized employment or remaining in the U.S. without authorization. They have opted to remain undocumented in the U.S. as they are unable to benefit from their approved visa petitions.

Parents of U.S. citizen children who cannot petition their parents for green cards until they turn 21 should also be granted deferred action status. Under the 1996 amendment to the Immigration and Nationality Act (INA), the parent of a U.S. citizen child who remained undocumented for one year or longer in the U.S., unlike the spouse of a U.S. citizen, is not eligible to apply for a waiver.

Also, the DACA program should not be limited to those under 31 as of June 15, 2012. It should be expanded to those who entered the U.S. before the age of 16 regardless of their age today. Also, the continuous residence cut-off date should be updated to June 15, 2014.

At present, DACA beneficiaries qualified to enlist in the military under the program Military Accessions Vital to National Interest or MAVNI are limited to those with advanced medical skills, or who can speak certain languages. The program should be expanded to allow a greater number of undocumented immigrants to serve in the military.

Parents and siblings of DACA beneficiaries should also be granted deferred action. Thousands of U.S.-born children have been placed in foster care because their parents have been deported. Expanding the DACA program to parents and siblings would keep the families intact and prevent children from ending up in foster care.

The “grandfathering” regulations under INA 245(i) should be expanded. Under current regulations, an immigrant who is a beneficiary of a petition filed on or before April 30, 2001 may adjust status in the U.S. based on their original petition or a new petition filed after April 2001, even if the beneficiary fell out of status. Although reinstating Section 245(i) would need legislative action, the Administration could expand the regulations that define who is grandfathered under 245(i).

Also, the Temporary Protected Status (TPS) should be granted to Filipino nationals in the U.S. Many countries such as Honduras, Nicaragua, El Salvador, and Haiti, to name a few, were granted TPS after a natural disaster. The destruction in the Philippines brought on by Typhoon Haiyan, which has killed more than 6,000, displaced 4 million and affected in total 16 million people, calls for TPS designation. It will assist thousands of Filipinos while rehabilitation is underway and will without doubt serve its humanitarian purpose.

Deferred action status should also be granted to individuals who are “low priority” for removal or those who are eligible to seek stays of removal under the Immigration and Customs Enforcement (ICE) Morton memo.

These are only a few of the proposed changes to the existing policies which the President can do using his executive authority. While it is true that only Congress can create a path to citizenship, these proposed changes will without doubt provide a solution to the pressing problems of the undocumented today and lay the ground work for a permanent legislative fix from Congress.

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