The Obama Administration's 2014 Immigration Initiative: Looking Back at What the Obama Administration Has Done-- and Ahead to the Trump Administration

The Obama Administration's 2014 Immigration Initiative: Looking Back at What the Obama Administration Has Done-- and Ahead to the Trump Administration

CRS Reports & Analysis
Legal Sidebar
The Obama Administration’s 2014 Immigration
Initiative: Looking Back at What the Obama
Administration Has Done—and Ahead to the Trump
Administration
11/22/2016
As President-elect Trump prepares to take office, questions have been raised about what his Administration might mean
for the various immigration-related initiatives that the Obama Administration announced on November 20, 2014. While
the Obama Administration had taken certain actions regarding immigration at earlier dates, as well as subsequently,
November 20, 2014 was the date when President Obama and the heads of several executive branch agencies announced
that the Administration would be taking a number of steps to “fix” what the President had repeatedly described as a
“broken” immigration system in the absence of congressional action on “comprehensive immigration reform.” Table 1
below lists these initiatives.
The implementation of the best-known of these actions—the Deferred Action for Parents of Americans (DAPA)
program and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program—was blocked by the
federal courts. However, many, although not all, of the other actions announced on November 20, 2014, have been
implemented, as Table 1 below illustrates. (The Obama Administration also took other actions as to immigration at
other dates that are not reflected in Table 1. These include the 2012 DACA program, which remains in place.)
It is unclear whether a Trump Administration would seek to reverse any or all the November 20, 2014 actions as to
immigration. However, assuming that President Trump wishes to terminate a particular initiative, it would appear that
he could direct the appropriate executive branch agency to modify or rescind the directive that forms the basis of the
action. The type of action, and the procedures followed prior to its issuance, will generally determine the process and
expediency by which it can be revoked. For example, legally binding final agency rules promulgated pursuant to the
notice-and-comment procedures of the Administrative Procedure Act generally may be repealed only after compliance
with those same notice-and-comment procedures. In addition, if the repeal is challenged, the executive branch agency
will be required to provide a “reasoned analysis” that justifies the repeal. In contrast, informal directives from executive
branch agencies that were not issued pursuant to notice-and-comment procedures, and which lack the force and effect of
law, can be more easily withdrawn. Policy statements, agency letters, and other guidance documents, for example, can
generally be revoked immediately and without significant procedural hurdles.
It should be noted, however, that limitations imposed on an executive branch agency either by statute or through judicial
decision may constrain an agency’s ability to revoke a specified action.
Table 1: Implementation of the November 20, 2014, Actions as to Immigration
Proposed Action
Current Status

Implementing
Implementing
Other
Regulations
Policy
Guidance
Advance Parole

No further
publicly
Issuance of written legal guidance by the
available
Department of Homeland Security (DHS)
guidance appears
general counsel on the meaning of the
to have been
decision of the Board of Immigration
issued to date.
Appeals in Matter of Arrabally, clarifying
that when an alien leaves the United States
pursuant to a grant of advance parole, that
individual does not make a “departure”
within the meaning of Section 212(a)(9)
(B)(i) of the Immigration and Nationality
Act (INA).

INA § 212(a)(9)(B)(i) generally bars, for a
period of three to ten years, the admission
of aliens who depart the United States
after having been unlawfully present for
more than 180 days. Parole involves an
entry into the United States that does not
constitute an admission for purpose of the
INA, and advance parole involves
permission to reenter the United States
granted to aliens prior to their departure
from the country.
Border Security

Task forces
reportedly
Establishment of a “Southern Border and
became
Approaches” campaign, involving the
operational on
commissioning of three joint task forces,
February 6,
incorporating elements of the U.S. Coast
2015.
Guard (USCG), U.S. Customs and Border
Protection (CBP), U.S. Immigration and

Customs Enforcement (ICE), and U.S.
Citizenship and Immigration Services
(USCIS), and the meeting of specified
objectives (e.g., interdicting people and
goods attempting to enter illegally between
ports of entry).
Citizenship
Final rule

USCIS began
providing for
practice of
Implementation of specific actions to
partial waivers
accepting credit
“[p]romote and [i]ncrease [a]ccess to U.S.
of naturalization
card payment for
[c]itizenship,” including allowing the use
fees
naturalization

of credit cards to pay naturalization fees;
(promulgated
fees in
commission of a study of the feasibility of
Oct. 24, 2016
September 2015.
granting partial waivers of the
and effective on
naturalization fee for certain impoverished Dec. 23, 2016).
individuals; and expansion of USCIS’s
citizenship public awareness campaign.
Deferred Action for “Unlawfully Present

Implementation
Aliens”
enjoined as the
result of a legal
Establishment of a program to grant
challenge
deferred action—one type of relief from
brought by a
removal—and work authorization to aliens
number of states.
who entered or remained in the United
States in violation of immigration law and
whose children are U.S. citizens or LPRs.
Expansion of the 2012 DACA program to
cover additional aliens, and the provision
of three-year grants of deferred action and
work authorization, as opposed to two-
year grants.
Employment-Based Immigrant Visa

Report issued in
System
July 2015 set
forth specific
Implementation of steps to ensure that all
options for
employment-based immigrant visas
ensuring that all
authorized for use by Congress in a
employment-
particular year are used. Improvements in
based immigrant
determining when immigrant visas are
visas are used.
available to applicants during the fiscal
year, to be reflected in the Visa Bulletin.
Extreme Hardship

Policy

memorandum
Development of additional guidance on the
(dated Oct. 21,
meaning of “extreme hardship,” a phrase
2016), changes
used in several provisions of the INA that
to the USCIS
gives immigration officials the authority to
Policy Manual
waive particular grounds of inadmissibility
(effective Dec.
for aliens who demonstrate “extreme
5, 2016).
hardship” to qualifying relatives, such as
specified U.S. citizen or lawful permanent

resident (LPR) family members.

Absent a waiver, these grounds of
inadmissibility could preclude an alien’s
admission to the United States in a legal
status or keep an alien from being able to
adjust to LRP status.

Enforcement of Federal Labor,

Task force was
Employment, and Immigration Law
reportedly
established and
Establishment of an interagency working
is working.
group for the “consistent enforcement of
federal labor, employment, and
immigration laws.”

H-4 Visa Holders & Work Authorization
Final rule

(promulgated
Finalization of regulations on the granting
Feb. 25, 2015,
of work authorization to certain aliens
and effective
present in the United States on H-4
May 26, 2015).
nonimmigrant visas.

H-4 visas are granted to the spouses and
minor children of aliens currently in the
United States on H nonimmigrant visas.
The rule only applies to spouses of H-1B
nonimmigrant visa holders. The INA does
not expressly authorize the issuance of
work authorization to H-4 visa holders,
although it does include language that the
Executive has historically relied upon in
granting work authorization to aliens not
expressly authorized to work by the INA.
Immigration and Customs Enforcement

DHS has
Officers
reportedly
completed the
Realignment of the job series for ICE
transition to such
Enforcement and Removal Operations
a “single career
(ERO) officers, and the provision of
path” for ICE
premium ability pay coverage for such
ERO officers.
officers.
Immigration Enforcement Policies

Policy

memorandum
Rescission of a number of earlier policy
(effective
memoranda regarding immigration
January 5,
enforcement and detention priorities and
2015).
establishment of new priorities.
Interior Immigration Enforcement

Implementation
of PEP

Discontinuance of the Secure
reportedly began
Communities Program, which was used
in summer 2015;
for identifying potentially removable
three new
aliens within the interior of the United
immigration
States, replacing it with a new program—
detainer forms
the Priority Enforcement Program (PEP)—
were issued in
that, using the new priorities as a guide,
April 2015.
would make more limited use of
immigration detainers issued to state and
local governments in obtaining custody of
aliens for purposes of removal.
An immigration detainer is a form by
which ICE advises other law enforcement
agencies of its interest in individual aliens
whom these agencies are detaining.
Implementation of PEP did not affect the
database interoperability or information
transmission components of Secure
Communities.
L-1B Visas for Intracompany Transferees
Policy

memorandum
Development of guidance on the meaning
(dated Aug. 17,
of “specialized knowledge” for purposes
2015).
of L-1B visas, which enable U.S.
employers to transfer professional
employees with specialized knowledge
relating to the organization’s interests from
an affiliated foreign office to a U.S. office.
“National Interest” Waivers for Certain

Policy

Employment-Based Immigrants
memorandum
(dated Mar. 9,
Expansion of use of the waiver set forth in
2016).
INA § 203(b) (2) (B) to permit certain
aliens with advanced degrees or
exceptional ability to seek LPR status
without employer sponsorship—something
typically required for employment-based
immigrants—if their admission is in the
“national interest.”
Optional Practical Training for Foreign
Final rule

Students
(promulgated on
Promulgation of regulations that expand
Mar. 11, 2016,
the degree programs in which foreign
and generally
students in science, technology,
effective May
engineering, and manufacturing (STEM)
10, 2016).
fields are eligible for optional practical

training (OPT) and extend the time period
of such OPT.

OPT permits foreign undergraduate or
graduate students with F-1 status who
have completed or are pursuing their
degrees to work in the United States for a
period of time on their student visas.
Parole in Place for Family Members of

No further
Certain Military Personnel
publicly
available
Granting parole in place or deferred action
guidance appears
to certain unlawfully present spouses,
to have been
children, and parents of individuals
issued to date.
seeking to enlist in the U.S. Armed Forces.
(A previous policy memorandum had
already made provision for such parole for
qualifying family members of active
members of the U.S. Armed Forces and
certain others with military ties.)
Parole involves an entry into the United
States that does not constitute an
admission for purpose of the INA, and
parole in place involves a grant of parole
to aliens already present within the United
States.
Parole of Inventors, Researchers, and
Proposed rule

Start-Up Founders
(promulgated
Aug. 31, 2016,
Parole into the United States of certain
with comments
inventors, researchers, and founders of
due no later
start-up enterprises.
than October
17, 2016).

Parole involves an entry into the United
States that does not constitute an
admission for purpose of the INA.
PERM Program Modernization
Draft rule

reportedly
“Modernization” of recruitment and
submitted for
application requirements for the Program
Office of
Electronic Review Management (PERM)
Management
program, whereby the Department of
and Budget
Labor (DOL) certifies that the issuance of
(OMB) review,
an employment-based immigrant visa will
but is said to be

not displace U.S. workers or adversely
“unlikely”
affect the wages or working conditions of
before the end
similarly employed U.S. workers, in order
of the Obama
to identify methods for aligning domestic
Administration.
worker recruitment requirements with
demonstrated occupational shortages and
surpluses.
Provisional Waivers of the Three- and
Final rule

Ten-Year Bars
(promulgated on
July 29, 2016,
Permission for spouses and children of
and effective
LPRs to obtain provisional waivers of the
Aug. 29, 2016).
three- and ten-year bars on the admission
of aliens who have accrued more than 180
days of unlawful presence in the United
States before leaving the country to apply
for an immigrant visa to obtain LPR status
pursuant to a family-based visa.

Previously only spouses and children of
U.S. citizens could obtain such waivers in
the United States.
“Same or Similar Job” for Purposes of
Final rule
Policy

Job Portability
addressing this
memorandum
and other issues (dated Mar. 18,
Development of additional guidance on
(promulgated
2016).
what constitutes a “same or similar job”
Nov. 18, 2016,
for purposes of INA § 204(j), which would and effective
permit workers who have filed for
Jan. 17, 2017).
adjustment to LPR status to change jobs
without jeopardizing their ability to seek
such status, provided that their new jobs
are in the same or similar occupational
classification as their old jobs.
T and U Visas for Trafficking Victims

Practice of
granting such
Announcement that the Wage and Hour
certifications
Division at DOL would (1) begin
reportedly began
certifying applications for T visas and (2)
on April 2, 2015.
expand its certifications for U visas for
victims of human trafficking.

T visas provide legal status to certain
victims of severe forms of human
trafficking who assist in the investigation

or prosecution of trafficking crimes (unless
they are under 18 years of age or unable
to do so due to the trauma). U visas
provide legal status to victims of
“qualifying criminal activities” who
possess information about that crime and
have been, are being, or are likely to be
helpful to law enforcement or government
officials. Applications for T and U visas
must generally be certified by law
enforcement or government officials
confirming the applicant’s assistance.

Posted at 11/22/2016 03:38 PM