President Obama’s Executive Action On Immigration – What It

On November 20, 2014, the president announced new policies for Deferred action, a form of prosecutorial discretion, by which the Immigration Service deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of overall immigration enforcement mission. While deferred action does not confer legal status to recipients the United States, it permits individuals to be or remain lawfully present in the United States.

Changes Under the Obama Administration Guidance Without New Regulation.

• Expansion of Deferred Action (DACA)DACA. DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 20 12 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.

  Changes to DACA.

  • Removing the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981). That restriction will no longer apply.
  • Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years.
  • Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010. USCIS shall begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement.
• Expanding Deferred Action for Parental Accountability (DAPA)The Obama administration using a process, similar to DACA, extended prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:
  • have, as of 11/20/2014, a son or daughter who is a U.S. citizen or lawful permanent resident;
  • have continuously resided in the United States since before January 1, 2010;
  • are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
  • have no lawful status on the date of this memorandum;
  • are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and
  • present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.
• Filing Procedures DACA & DAPAApplicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to the President’s authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act.⁴

  Deferred action granted pursuant to the program shall be for a period of three years.Applicants will pay the work authorization and biometrics fees, which currently amount to $465. There will be no fee waivers and, like DACA, very limited fee exemptions.

  USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after November 20, 2014.

• Individuals in Removal Proceedings or with a Removal OrderAs with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal.

  Specifically:

  • ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals.
  • ICE is further instructed to review pending removal cases, and seek administrative closure or termination of the cases of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations. ICE should also establish a process to allow individuals in removal proceedings to identify themselves as candidates for deferred action.
  • USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. The USCIS process shall also be available to individuals subject to final orders of removal who otherwise meet the above criteria.
• Expansion of Advance Parole (Arrabelly & Yerrabelly)The Obama administration also asked the Government’s General Counsel to issue written guidance which will clarify that in All cases when an individual physically leaves the United States pursuant to a grant of advance parole (permission from the Government to leave), that individual shall not have made a “departure” within the meaning of the law (section 212(a)(9)(B)(i) of the INA). This is consistent with the Immigration Courts. The Board of Immigration Appeals (BIA) precedent decision on Matter of Arrabally, held that individuals who travel abroad after a grant of advance parole do NOT effectuate a “departure… from the United States”. That provision, along with section 212(9)(B)(i)(I), established the “3- and 10-year bars” for persons who have “departed” the U.S. after more than 180 days of unlawful presence in the United States. This allows DACA and DAPA recipients to travel if they are given advance parole.
• Expansion of Parole in Place (PIP)Expanded PIP eligibility to make it apply to the parents and spouses of those who are applying to join the U.S. military. This means unlawful presence will be waived for these family members of U.S. military personnel or U.S. military prospects.