The Obama Administration's Announced Immigration Initiative: A Primer

The Obama Administration's Announced Immigration Initiative: A Primer

Legal Sidebar
The Obama Administration’s Announced
Immigration Initiative: A Primer
11/24/2014
On November 20, President Obama announced the commencement of a multi-pronged immigration
initiative that could, among other things, enable a substantial portion of the unlawfully present alien
population to obtain temporary relief from removal and work authorization. The new initiative also involves
other actions, including narrowing the scope of aliens prioritized by federal immigration authorities for
removal; using “parole” authority to allow certain aliens to enter or remain in the United States; and
modifying rules relating to visa eligibility (or processing). This Sidebar provides a brief overview of the
major components of the announced initiative. A CRS Report providing more extensive analysis is in
preparation.
Expanding Scope of Aliens Eligible for Grants of Relief under the Deferred Action for Childhood
Arrivals (DACA) Initiative: In 2012, the executive branch launched the DACA initiative, enabling many
unlawfully present aliens who came to the United States as children to be granted “deferred action” (a type
of relief from removal which does not confer immigration status) and work authorization. On November 20,
the Department of Homeland Security (DHS) announced modifications to these eligibility requirements.
Under the expanded version of DACA, qualified applicants must have entered the United States before the
age of 16, on or before January 1, 2010. Previously, to be eligible for DACA relief, an alien must have
entered the country before the age of 16, and also have been born after June 20, 1981, and have been
present in the country since June 15, 2007 (i.e., five years before the 2012 version of DACA was initially
announced). Under the revised DACA initiative, first-time DACA applicants and those seeking renewal may
be granted deferred action and work authorization for a three-year period, rather than a two-year period as
had previously been the case. These modifications to the duration of DACA relief apply to all new DACA
applications, as well as applications for renewal of DACA relief, beginning November 24, 2014. DHS intends
to begin accepting applications under the new DACA criteria within 90 days of the announcement of this
initiative.
Establishment of a DACA-like Initiative for Unlawfully Present Alien Parents of U.S. Citizens
and Lawful Permanent Residents (LPRs): The Administration has also announced the creation of a
new, DACA-like initiative for unlawfully present aliens who are parents of U.S. citizens or LPRs (sometimes
referred to as legal immigrants) and continuously resided in the United States since before January 1, 2010.
To obtain relief under this initiative, the applicant must not fall under any of DHS’s enforcement
prioritization categories (e.g., has not been convicted of a serious crime), and “present no other factors
that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Applicants must also
pay a processing fee for a background check and work authorization. DHS intends to begin accepting
applications no later than 180 days after the announcement of this initiative.
Modifying Immigration Enforcement Priorities: DHS has also issued a new guidance identifying
categories of aliens whom DHS immigration officers should prioritize for apprehension and removal from the
United States on account of immigration violations. The new Department-wide guidance identifies a
narrower scope of aliens as removal priorities than some earlier prioritization guidelines issued by DHS
components. Aliens who are deemed a public safety threat or who have engaged in serious criminal activity
remain top removal priorities. However, aliens without legal immigration status who have been in the United
States since 2013, and who have not engaged in specified criminal activity or violated a prior order of
removal, are unlikely to be considered a removal priority.
Replacing Secure Communities with the Priority Enforcement Program (PEP): The Secure

Communities program has been employed by Immigration and Customs Enforcement (ICE) within DHS to
identify potentially removable aliens in state and local custody, using fingerprint information of booked
individuals which has been electronically submitted to the FBI for criminal background checks. Using this
information, ICE may seek to pursue enforcement action against a removable alien in state or local custody,
and issue a detainer requesting the state or locality continue to hold for up to 48 hours the alien until ICE
may take custody. Secure Communities and the related use of detainers have proven controversial, with
some states and localities declining to honor detainers for at least some categories of aliens (e.g., those not
convicted of crimes deemed serious) and some federal courts finding constitutional limitations on state and
local authorities’ ability to honor detainers.
The PEP program would replace Secure Communities. While relying on the same technological system as
Secure Communities, PEP is primarily intended for use in taking custody of aliens in state or local custody
who had been convicted of certain crimes (e.g., felonies and “significant” misdemeanors). The use of
detainers to acquire custody of aliens would be substantially restricted; instead, state or local entities would
generally be requested to simply notify ICE when they intended to release an alien whom ICE had targeted
for removal.
Expanding Provisional Waiver of 3/10-Year Bar to Admission: Aliens unlawfully present in the
United States for more than 180 days are, following their departure from the country, generally barred from
re-admission for 3 or 10 years, depending upon the length of their unlawful presence. Accordingly, an
unlawfully present alien who departs the United States in order to satisfy requirements to obtain an
immigrant visa (e.g., being interviewed at a U.S. consulate abroad) could be barred from returning to the
United States for a considerable period of time. The Immigration and Nationality Act (INA) provides that the
3/10-year bar to admission may be waived if immigration authorities determine that refusing to admit an
alien would result in “extreme hardship” to the alien’s spouse or parent, when the spouse or parent is
either a U.S. citizen or LPR. In 2013, DHS promulgated regulations establishing a process by which the
unlawfully present alien who was either the spouse or minor child of a U.S. citizen could obtain a
“provisional” waiver to the 3/10-year bar, prior to departing from the United States.
As part of the Administration’s new initiative, DHS Secretary Jeh Johnson has instructed DHS to amend this
regulation to expand possible access to provisional waivers to all unlawfully present alien children
(regardless of whether they are minors or adults) and spouses of U.S. citizens and LPRs, for whom an
immigrant visa is immediately available. The DHS Secretary has also instructed immigration authorities to
provide greater guidance to administrative adjudicators as to the factors used in determining whether the
“extreme hardship” standard for granting a waiver has been satisfied. Significantly, the Secretary has
instructed U.S. Citizenship and Immigration Services (USCIS) to consider criteria where a presumption of
extreme hardship may be found to exist.
Use of Parole Authority: The INA confers immigration authorities with the ability, on a case-by-case
basis, to parole aliens into the United States “for urgent humanitarian reasons or significant public benefit.”
Parole does not constitute “admission” into the United States for immigration purposes and does not involve
the conferral of immigration status. Despite the paroled alien’s physical presence in the country, the alien is
“still in theory of law at the boundary line” of the United States. However, some paroled aliens might be
able to adjust to LPR status while present in the United States. Parole has historically been used in a
number of variations, including “advance parole,” under which some non-LPRs may be permitted to
temporarily leave the United States without re-applying for admission; and “parole-in-place,” by which some
aliens who unlawfully entered the country may be permitted to temporarily remain in the country.
As part of the new immigration initiative, the Obama Administration has announced the expanded use of
parole authority. Certain “inventors, researchers, and founders of start-up enterprises,” who might not
presently be able to obtain an employment-based visa, may be temporarily paroled into the country as part
of a new program to be established by USCIS. Additionally, the current use of “parole-in-place” for
immediate relatives of current and former members of the U.S. armed services would be expanded. An
unlawfully present alien may now be eligible to receive parole-in-place (or deferred action, when parole is
not available) if the alien is the spouse, parent, or child of a U.S. citizen or LPR “who seeks to enlist” in the
U.S. Armed Forces. Finally, DHS Secretary Johnson has instructed DHS to issue guidance concerning the
treatment of aliens granted advance parole, regarding such aliens not being deemed to have “departed” the

country for immigration purposes when such aliens return to the United States and are inspected by
Customs and Border Protection officials at a port of entry.
Visa Eligibility and Processing: The Obama Administration has also announced a number of actions
related to visa eligibility and processing. It characterizes many of these actions as being intended to
“support our county’s high-skilled businesses and workers by better enabling U.S. businesses to hire and
retain highly skilled foreign workers while providing these workers with increased flexibility to make natural
advancement with their current employers or seek similar opportunities elsewhere.” This includes taking
steps to ensure that all immigrant visas authorized by Congress for issuance each year are issued to eligible
individuals when there is demand for such visas. Another action involves expanding the duration of any
“optional practical training” (OPT) engaged in by foreign nationals who are studying science, technology,
engineering, and mathematics (STEM) fields in the United States on student visas, as well as expand
eligibility for OPT to additional fields. The Administration announced several other actions, including
modifying or clarifying DHS interpretation of certain INA terms relevant to visa eligibility and processing,
and establishing an inter-agency working group to “modernize” and “streamline” the immigrant visa
system.
Other Measures: A number of other immigration-related measures have been announced by the Obama
Administration, and further action might be forthcoming. Among the actions announced last week include:
the allocation of additional enforcement personnel along the U.S.-Mexico border and the establishment
of new border security task forces;
personnel reform affecting officers within the ICE’s Office of Enforcement and Removal Operations;
modifying the fee payment process for naturalization and studying the feasibility of altering the fee
waiver process; and
action by the Department of Labor (DOL), including providing additional assistance to certain aliens
who are seeking T visas or U visas on account of having been victims of human trafficking or other
crimes; and reviewing the so-called PERM program, whereby DOL certifies that the issuance of an
employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or
working conditions of similarly employed U.S. workers.
Posted at 11/24/2014 09:19 AM by Michael John Garcia | Share Sidebar
Category: Immigration and Nationality
Related Policy Issue(s): Immigration Policy