Obama’s Immigration Action Is Cause For Celebration

November 21, 2014Articles Law360

Reprinted with permission from Law360. (c) 2014 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.

It’s hard to write about the executive action announced on Nov. 20 by President Obama without getting caught up in the political rhetoric. Looking at the action as Immigration Accountability Executive Action, or IAEA, allows a more dispassionate summary.

President Obama announced changes in deferred action, enforcement and legal immigration.

Deferred Action

Deferred action is the exercise of prosecutorial discretion to defer removal of an individual. With that exercise of discretion comes employment authorization and, when approved, travel authorization and lawful presence. Lawful presence is only that: it’s not a visa status or a path to citizenship. It is discretionary and can be revoked. It allows people to live and work in the U.S. lawfully, without fear of removal — unless they violate the law in a way that would cause removal proceedings to begin.

Deferred Action for Childhood Arrivals, or DACA, was an executive action taken in 2012 that has resulted in more than 500,000 children arrivals, who have arrived in the U.S. since the executive action was taken, being able to have a legal status, employment authorization, Social Security cards, driver’s licenses, in most states, and access to higher education, in most states. DACA applicants have educational and other requirements. This program is handled on a case-by-case basis and unavailable to those who have been convicted of a felony, significant misdemeanor, three or more other misdemeanors or otherwise pose a public safety or national security risk. This program was expanded by IAEA.

DACA is for undocumented young people who came to the U.S. before the age of 16. With IAEA, program eligibility has been expanded to those born before June 15, 1981, and to those who have been continuously residing in the U.S. since Jan. 1, 2010. This expansion in eligibility comes with an expansion of the period of the DACA benefit from two to three years at a time. U.S. Citizenship and Immigration Services emphasizes that this expansion of the program is not yet available, but should be in about 90 days.

The bigger deferred action news is called Deferred Action for Parental Accountability, or DAPA. DAPA has an estimated benefit population of over 4 million undocumented individuals. USCIS advises that it will be available in approximately 180 days to benefit parents of U.S. citizens or permanent resident children born on or before Nov. 20, 2014. Like DACA, DAPA will be adjudicated on a case-by-case basis and unavailable to parents who are an enforcement priority for removal. The educational requirement will probably not apply, but a filing fee will.

The benefits side of USCIS is funded by fees charged for applications submitted. DACA and DAPA, as is the case for applications for all immigration benefits, are on a fee-for-services basis. The fee for DACA is currently $465. Immigration enforcement is not funded the same way.


As their name suggests, the U.S. Department of Homeland Security, through Immigration and Customs Enforcement and Customs and Border Protection, protects the borders and enforces immigration law.

President Obama announced new priorities for cracking down on illegal immigration at the border and “deporting felons, not families.” As a White House press release describes it: “The President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members and recent border-crossers at the top of the deportation priority list.”

The enforcement priorities go hand-in-hand with deferred action and the prosecutorial discretion authority that ICE and President Obama have. President Obama also announced initiatives to unclog the immigration courts and speed up the processing of applications for immigrant visa petitions for those in removal. In addition, IAEA will expand the provisional waiver (I-601a) processing for sons and daughters of U.S. citizens (FB-1 and FB-3) and spouses and sons and daughters of permanent residents (FB-2).

The controversial Secure Communities program will be replaced by a new initiative, the Priority Enforcement program, which will focus on the removal of those convicted of criminal offenses, rather than all noncitizens who come into police custody.

Legal Immigration

DACA expansion, DAPA creation and prosecutorial discretion will add more legal workers to the workforce. What is of particular interest to business immigration lawyers are the initiatives announced relative to our “broken” legal immigration system. Most of these reforms will take the time required for the regulatory process of the Administrative Procedures Act to run its course, but they will potentially provide great relief to many businesses, entrepreneurs and students.

Because of the limited number of immigrant visas, many beneficiaries of approved petitions, particularly in the EB-2 India and China categories, have years-long waits before they can take the final step to apply for permanent residency. During that time, spouses on temporary worker (H-1B) visas are not eligible for employment authorization. The principal beneficiary of the employment-based visa is not eligible for “portability,” in other words, must stay with the petitioning employer until a visa is available and the application for permanent residency is filed.

Preregistration, if implemented with other regulatory fixes, would allow the beneficiary and dependent family members to secure the adjustment of status (I-485) benefits of employment authorization and advance parole, when the immigrant visa petition (I-140) has been approved but no priority date is available. In addition, portability will be made easier so that highly skilled workers may progress professionally and change employers. IAEA will include an effort to free more of the available immigrant visas via changes in counting and use of all available visas.

H-4 employment is in the works.

There are not enough H-1B skilled worker visas to begin with, and each year entrepreneurs and employers struggle with the fact that their application is subject to the chance of a lottery. The number of H-1B visas can only be increased by an act of Congress, but methods such as a “parole in place” for certain entrepreneurs and extension of the duration of STEM Optional Practical Training (OPT) for F-1 students would give additional opportunities to retain valuable and needed talent.

President Obama’s action includes the U.S. Department of Labor's modernization of the labor certification, or PERM, process, USCIS' provision of clear guidance of what “specialized knowledge” is for L-1B intracompany transfer purposes, and DHS' clarification and expansion of advanced parole so that individuals in lawful status can travel to their countries of origin with less fear about their ability to return or be readmitted to the U.S.

Changes are underway. Following President Obama's speech, the DOL, DHS, ICE and USCIS all posted announcements concerning their parts of the executive action.

These are some of the headlines of President Obama’s historic announcement of Nov. 20, 2014. The implementation will take some time and may be slowed by legal action or accelerated by Congress enacting immigration reform to bring U.S. immigration law and policy into this century, fixing decades-old problems. For now, DACA and DAPA, as well as the legal immigration initiatives, give hope and relief to millions. Cause for celebration!

Reprinted with permission from Law360. (c) 2014 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.