President Obama claims he will move forward on immigration reform as early as this week. Immigration law scholars and practitioners are on the edge of our seats hoping for substantial changes that actually have teeth. But those who have most at stake are the millions of immigrants and their families who pray they can finally be recognized as important counterparts in this great nation they call, “home.”
A White House source has reported to Fox News that the President will soon unveil a 10-part plan for overhauling U.S. immigration policy via executive action — including suspending deportations for millions. What does this mean exactly? Well, until the plans of action are announced, we do not know how the current system will change or who it will benefit. Speculation and common sense leads immigration experts to believe that the President will likely expand the Deferred Action program which is currently only available to individuals who came to the U.S. before age 16.
President Obama has Executive authority to enact the following administrative actions (amongst others):
Deferred Action is an administrative program that was implemented outside of Congressional legislation in 2012. If expanded to cover the parents of children who were born as U.S. citizens or who are now Lawful Permanent Residents, it could protect somewhere close to 4 million adult immigrants from deportation and separation from their U.S. citizen or resident families. It would also provide work authorization and drivers licenses to many who have already been working and paying taxes in our country for decades, but just want to get to-and-from work without fear of arrest. This protection would likely require proof of “good moral character” and presence in the U.S. for at least 10 years.
Parole-in-Place is another method of achieving the same goal of keeping families together. This administrative expansion was implemented in 2013 for families of active U.S. Military members, reducing many difficult hurdles for family members to adjust to lawful status without requiring the risky return to their home country, not knowing if reentry will ever be possible. This program could be widened to include immigrants with U.S. citizen spouses or children.
Broaden Visa Cap to Allow for Dependents. Each year, there is a limit on the number of visas that are issued in most categories. The cap limitation is a number that is set by law, and the President cannot change that number by Executive Order. However, the President can decide to not include spouses and children in the total number of visas allotted for that category. For instance, the EB1 Visa is available for those immigrants who can demonstrate “extraordinary ability” in certain occupational categories. The number of available visas changes each year, but to demonstrate let’s say there are 20,000 EB1 Visas available for 2015. It makes sense that Congress intended this to mean that there are visas available for 20,000 people with “extraordinary ability” who will benefit our country’s workforce. Instead, this visa limit has been interpreted to also include the family members of the person with”extraordinary ability,” which results in reaching the cap much faster since the family is counted in the available 20,000, and significantly fewer qualified workers are able to enter. This creates a ridiculously long backlog which prevents lawful entry into the country for years and even decades.
Increase Prosecutorial Discretion in Deportation Proceedings in order to limit the use of resources for removal of those individuals with only serious felonies or serious immigration law violations. According to the Department of Homeland Security’s (DHS) 2013 Annual Report, Immigration and Customs Enforcement (ICE) removed approximately 438,000 immigrants from the U.S. Of those removed, only about 20% had convictions for serious felonies. There are so many people in removal proceedings and so few resources to adequately handle the caseload. Currently, DHS is short 30 Immigration Judges across the country. If the policy for Prosecutorial Discretion is broadened, ICE lawyers will have more authority to terminate removal proceedings for those immigrants who are not a high priority – like those without serious felony convictions and with U.S. citizen children. 2 million U.S. citizen children have had a parent deported.
We have waited very patiently for Immigration Policy to finally reflect the economic and familial needs of people coming to America. It is estimated that there are 12 million undocumented people here in the U.S. – 60% of whom are in our work force. It may be possible to reach half (6 million people) through administrative changes by the President; however, the other half will require more significant and lasting immigration law reform by Congress.