On 20 November 21014, President Obama outlined his US immigration reform plan. The proposals are very limited in scope and the President urged Congress to act now in order to provide the much needed comprehensive US immigration reform. While the President's plans have received significant attention, there is also tremendous confusion regarding who qualifies and what benefits can be sought.
Why is President Obama taking US immigration reform action instead of the US Congress?
In early 2013, an Immigration Reform Bill (formally known as the "Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S.744)") was introduced and it successfully passed the Democrat-controlled US Senate in June 2013. Details of the Immigration Reform Bill are available in an earlier blog, which you can read here. Once approved by the Senate, the bill went to the Republican-controlled House of Representatives where it encountered significant opposition. Although piecemeal US immigration reform measures were debated in the House of Representatives, there has since been no action taken to advance the Immigration Reform Bill. Further details are available in this earlier post.
Does President Obama have authority under US law to implement the proposed immigration plan?
While welcomed by many, President Obama's US immigration plan has also stirred up opposition, including claims that he lacks the legal authority to promulgate the proposed measures. In response to such concerns, a group of 136 US law university professors has penned an open letter explaining the legal basis for the president's actions and confirming his authority to implement the proposed immigration measures. Specifically, the legal experts point to a long history of US presidents who have formulated similar US immigration policies, including George W Bush and Richard Nixon, to name but a few (the full list is available on the White House page); the fact that the proposed measures do not create a new path to obtaining US lawful permanent residency (a 'green card') or United States citizenship, but rather are an exercise in prosecutorial discretion since they provide temporary relief from deportation; and that federal courts have a long history of recognising the President's prosecutorial discretion in general and deferral action in particular. The full explanation of the President's legal basis for taking the proposed US immigration action is available here.
What are the US immigration measures proposed by President Obama?
The two proposals that have received the most attention involve deferral action for:
- Individuals who were born before 15 June 1981, continuously resided in the USA since 1 January 2010 and are currently in unlawful status in the USA such that they would otherwise risk deportation. This represents an expansion of the qualifying criteria under the Deferred Action for Childhood Arrivals (DACA) to allow more people to become eligible. Such individuals will benefit from deferral action for three years (rather than the current two) and can obtain employment authorisation in the USA; and
- Individuals who are parents of US citizens or 'green card' holders born on or before the day of the President's speech (20 November 2014), continuously resided in the USA since 1 January 2010, and are currently in unlawful status in the USA such that they would otherwise risk deportation, provided they do not have personal circumstances which would make them a priority individual for removal purposes.
The Washington Post has created a handy flow chart, available here, explaining the qualifying criteria.
Other proposals under the President's US immigration plan include:
- Allowing spouses and children of lawful permanent residents ('green card' holders) currently in unlawful status in the USA to seek unlawful presence waivers from inside the USA;
- Creating a 'Priority Enforcement Program' which specifies which cases represent deportation priorities. Although the slogan "Deporting felons, not families" has been publicised, the details of this programme are still unclear;
- Enhancing access to foreign students for university-affiliated businesses; and
- Other measures, including all the currently espoused qualification criteria, are detailed on the USCIS website.
Can applicants meeting the President's eligibility criteria submit an application now?
The United States Immigration and Citizenship Services (USCIS) is NOT accepting applications under President Obama's immigration plan at this time. USCIS believes that it will be in a position to begin accepting applications according to the following time frames:
- Within approximately 90 days from the President's speech on 20 November 2014 for applicants qualifying under the expanded DACA programme;
- Within approximately 180 days from the President's speech for eligible parents of US citizens and lawful permanent residents who are seeking deferred action;
- Within an unknown timeframe for the remainder of proposed programmes since they require new guidance and regulations to be issued.
Nonetheless, USCIS advises applicants who believe they qualify under the new programmes that they can begin collecting documents now by gathering evidence of their identity; the required relationship to a US citizen or US 'green card' holder; and of their continuous five year presence in the United States.
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