Contrary to many media reports, President Obama did not issue any executive orders on immigration in November. He did deliver a speech and two presidential memoranda on immigration, but both are very general in nature and mostly offer aspirational goals.
The real changes take shape in a series of companion memoranda issued by the Departments of Homeland Security and Labor detailing how the executive action is to be carried out.
Some of the changes represent a sharp break from past practices and might be litigated, overridden by Congress, or revoked by the next administration. Some of these changes, however, probably should have been made a long time ago and will likely remain in place for years to come.
Perhaps the biggest and most controversial parts of the plan involve changes to enforcement policies toward undocumented immigrants. The executive action provides three key changes in that sphere:
• The Deferred Action for Childhood Arrivals (DACA) program is being expanded. The program will defer the removal of and allow employment authorization (for three years) for persons who entered the United States prior to their 16th birthday. The cutoff date for arrival in the United States has been moved from 2007 to Jan. 1, 2010, and the upper age limit (31) for applicants has been removed. The changes are supposed to take effect within 90 days.
• A new Deferred Action for Parental Accountability (DAPA) program will also grant deferral of removal and employment authorization to parents of U.S. citizen or lawful permanent resident children born on or before Nov. 20, 2014. The parent must prove continuous residence in the U.S. since Jan. 1, 2010, to qualify, and cannot qualify if he or she is considered to be in a specific “enforcement priority group.” This aspect should take effect in 180 days.
• The Department of Homeland Security has been instructed to adjust its enforcement priorities away from interior enforcement against persons with no criminal record or minor criminal records and to devote more resources to border enforcement and interior enforcement against violent criminals, gang activity, terrorists or other national security threats. The administration is calling this a “felons not families” policy.
The effects of these changes on New Hampshire will likely be modest, given its relatively low foreign-born population. Still, for people who have been living in the shadows for many years, the opportunity to have employment authorization and a driver’s license can mean increased job mobility, better utilization of their skills, higher wages, and increased consumer spending.
New Hampshire recently made driving without a license a class B Misdemeanor (effective Jan. 1, 2015) so this is timely for many persons who previously were not legally able to obtain a driver’s license.
Business-related reforms
Another set of reforms are aimed directly at improving business immigration.
Only Congress can increase the number of employment visas available in a given year. However, a few adjustments have been made through executive action to make it easier to attract and retain well educated and high skilled workers:
• In the past, dependents of H-1B skilled workers (H-4 visas) have not been authorized to work. That will be changed in January 2015. That should have a positive economic impact right away.
• The waiting times for employment-based green cards are very long (often many years), so people sometimes run into problems while waiting. They may run out of time on their temporary visas, others may get a promotion or have to take a new job (if a company closes or changes hands), and this has sometimes been grounds for denying their green card application. Potential fixes for these issues are being considered by the Department of Homeland Security, although no timeline has been announced for implementation.
• Other areas of improvement in the business immigration arena include broadening and extending the Optional Practical Training (OPT) programs for students, especially in a STEM program; making user-friendly improvements to the
Program Electronic Review Management (PERM) labor certification program, which underlies the employment-based permanent resident process; and liberalizing the immigration rules for highly capitalized immigrant investors and for persons with exceptional abilities and advanced degrees.
Additional initiatives in various areas that needed attention were also included, such as: creating an interagency workgroup on worksite immigration enforcement; reorganizing the joint agency operations on the southern border and reviewing the personnel composition and compensation at Immigration and Customs Enforcement; making naturalization (U.S. citizenship) more affordable; and easing the path for immigrant families of military enlistees.
All of these announced measures are temporary in nature and can only soften the edges of our broken immigration system rather than repair it. There are still many additional reforms needed to make the immigration system work efficiently, humanely and to the highest benefit of the United States. Comprehensive reform will have to wait for a legislative fix from Congress.
Randall A. Drew, principal of Drew Office, Bedford, has been practicing immigration law in New Hampshire since 1998. He can be reached at 603-644-3739 or randall@drewpllc.com.
Drew Law Office, PLLC -- Immigration Lawyers Metro Manchester NH (603) 644-3739 or www.immigrationNH.com
