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President Turns Attention to Immigration Executive Action

“Do it. Take executive action. Make it big.”  — NY Times Editorial Board 11/6/2014

Major changes to immigration rules are in the news again, but those of us who have been following the prospects for Immigration Reform in recent years know that promises of change to our current system should be taken with a heavy dose of skepticism.

Nonetheless, since the mid-term elections last week, a renewed focus on whether the White House will bypass Congress to pursue Executive Action on immigration relief appears to be based on a very real possibility for change.  President Obama has two years remaining in his second term in office. He has been stuck with an antagonistic Congress which has obstructed his efforts at immigration progress, and which failed to pass a comprehensive bipartisan immigration reform bill last year. Meanwhile, a broad spectrum of business and civil rights-related immigrant advocacy groups feel betrayed by what they perceive as the President’s inaction, following campaign promises of immigration relief. With this backdrop, we believe that the President may announce Executive Action, and he may do it very soon.  Indeed, during a “Face the Nation” interview broadcast on Sunday, November 9, he said he had waited long enough for Congress to act.

Who Will Executive Action Cover? If Executive Action on immigration comes to pass, the scope of who is protected will be announced by the Department of Homeland Security. Executive Action may be so broad as to include those who would have qualified for legalization under the bill that passed in the Senate in 2013 but died in the House of Representatives. That bill would have protected millions of individuals if they have been in the U.S. since December 31, 2011, paid fines, back taxes and had not been convicted of a felony or three or more misdemeanors, among other requirements. Beneficiaries would have been a part of the “earned legalization” program in which they would first become a lawful resident, and eventually be eligible for U.S. citizenship. The bill would have also strengthened border enforcement and increased the annual allotment of visas for high-skilled H-1B workers.

Executive Action may also be more limited in scope, for example, resembling the Deferred Action for Child Applicants (“DACA”) relief program of 2012. DACA directs the U.S. immigration agencies (USCIS, CBP, ICE) to practice prosecutorial discretion towards some individuals who immigrated to the United States as children and are currently in the country unlawfully. A grant of deferred action does not allow for a permanent lawful immigration status or provide a path to citizenship. Rather, a grant of DACA gives qualifying unauthorized immigrants temporary protection from deportation and permission to work. In certain situations, a DACA grant might give the ability to travel abroad and return.

As it is a form of temporary relief, DACA exposes the beneficiaries to possible repercussions if the relief is ever withdrawn. As such, hundreds of thousands of eligible DACA beneficiaries never applied, and a similar chilling effect may encumber the broad relief that Executive Action contemplates if the scope is too narrow.

President Obama Should use his Discretion, by issuing Executive Action–which is customary and entirely legal. In doing so, the Department of Homeland Security can focus on securing the homeland. CBP, ICE and USCIS enforcement resources can be spent on locating and removing violent criminals, terrorists and protecting the nation’s borders, rather than seeking and apprehending those who have deep roots in the U.S. and pose no threat.

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See also: The Deferred Action for Childhood Arrivals (“DACA”) program.

See also: Inadmissibility grounds that make an immigrant ineligible for benefits.

See also: 3 Tips for making the most of an immigration consultation.

See also: Information about scheduling a consultation with our law firm.

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