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Obama Immigration Executive Action and What it Means, Really

By November 14, 2014One Comment

From FoxNews we learn that President Obama is considering a 10 point Executive Action on immigration.  We will walk through each of these 10 items and give you a real life perspective of what they mean, who it would affect, and how “good” it is.  But, to note, the most important thing he can do is not on this list–count only principal immigrant applicants, rather than all family members when it comes to family legal immigration quota totals. That appears to be off the table, for now.

The 10 points of the draft plan, as outlined by FoxNews, are as follows, with my commentary on each item.
Expand ‘deferred action’ for young illegal immigrants
This would expand a major step taken by Obama in June 2012. In June 2012, Obama offered a deportation reprieve – a.k.a., deferred action — for undocumented immigrants who came to the U.S. as children, entered before June 2007 and were under 31 as of June 2012.
The change would expand that to cover anyone who entered before they were 16, and change the cut-off from June 2007 to Jan. 1, 2010. Obama estimates this would make nearly 300,000 additional undocumented immigrants eligible. I doubt this many more would eligible, and, only a third of those legible under the current deferred action have applied. Look for around 100,000 to apply for this. This seems a likely easy fix for the president, and court has already held that the president has authority to do this. 
Expand ‘deferred action’ for parents of U.S. citizens and legal permanent residents
This would significantly expand the above program by also giving a reprieve to illegal immigrants who have been in the U.S. for more than five years and have children who are U.S. citizens or legal permanent residents. This is the first of the big three proposals.
This could allow upwards of 4.5 million illegal immigrant adults to stay, according to estimates.  That sounds about right, but could on less than half applying, for a variety of reasons, including costs, proof, and fear.
Sen. Jeff Sessions, R-Ala., voiced concerns that illegal immigrants could simply fib in order to meet the criteria for this program. Further, he said millions more people would then be “entitled” to U.S. privileges including health care. 
Of course Jeff Sessions is lying, but that does not stop FoxNews from printing it without fact checking him. The immigrants who apply under this proposal do not receive any legal status.  They would merely have a stay of deportation, like the kids who have DACA. They would not be eligible for any public benefits, and would lot be eligible for Obamacare, which specifically excludes anyone who is it a permanent resident.   Also, USCIS is excellent at detecting fraud in 2014, something that Legacy INS was not so good at in 1986.   Will people lie to try to get this benefit, yes, like in all government benefit programs.  Will they be successful, not likely. 
Prioritize deportations for serious criminals
This would be a Department of Homeland Security-wide enforcement policy to prioritize deportations for serious criminals and other individuals deemed a threat – including gang members.
ICE already does this to a large extent.  There is no doubt that the random serious criminal is not deported, but that is infrequent.  Spending more money on this type of program because they are not focused on traffic infractions will be a huge success for ICE. 
“Our national security suffers whenever we spend precious enforcement resources on hardworking immigrant families, rather than on criminals and those who mean our communities harm, . . . .”
End ‘Secure Communities’ and start a new program
Obama would discontinue the “Secure Communities” program. Under this program, ICE takes fingerprint information that it gets from local jails and checks it against immigration databases. Immigration and Customs Enforcement then places a “Hold” on the immigrant, which frequently leads to deportation, more than 2 million times since Obama has been President, and frequently of non-criminal foreign nationals.
Hundreds of thousands of “criminal aliens” have been deported this way.
The plan calls for replacing this with another, unspecified program.  Obviously, he will have to replace this with another program, but computer tracking of actual criminals is much easier today than ever before.  Look for a “Secure Communities” light.
Boost pay for ICE officers
This calls for a pay raise for Immigration and Customs Enforcement officers, to “increase morale.” Earlier this year, the National ICE Council – the union representing ICE workers – called for more funding for the agency.   I don’t know where Obama is going to get this money, if Congress does not allocate it. 
Expand high-tech visas
The plan calls for working with the State Department to expand visas for foreign-born workers with high-tech skills, to support U.S. businesses. This is projected to offer another half-million immigrants a path to citizenship.
This is a little vague.  Once way to do this is to not count foreign national family members when the principal is immigrating through employment. This would virtually eliminate the backlog of visas for all nations.  Obama could also allow the spouses of H-1B visas to work, he could modify the definition of “extraordinary ability for O-1 visas, and he could expand the ability of a company to obtain cap-exempt  H-1B visas for companies at or affiliated with  a University.  What Obama cannot do is increase the number of H-1B visas subject to the cap each April. Expect continued lotteries for the standard H-1B. This point is very vague. 
Strengthen border security
The plan would commit additional resources to the U.S.-Mexico border to deal with uncoudme red immigrant traffic, partly in response to the surge over the summer of undocumented children from Central America.  Of course these children were applying for asylum, which is a treaty obligation we have. We were and are not allowed to turn these kids away.  
This sounds great in practice, but this is the part of the plan Obama needs to sell and actually perform on to stop what some will say will be another large migration of undocumented people, coming in response to the Executive Action. Clearly putting children in jail is not working as a deterrent.  The biggest deterrent would be a functioning legal immigration system that lets family members come quickly, reduces lines and matches willing workers with employers who need their services in a logical functional way. GOP Congress, are you listening?
Expand provisional waivers to spouses and children of legal permanent residents
This would be the second of the big three parts of this plan.  He would expand a wildly successful provisional waiver program in place since March 2013 for undocumented spouses and children of permanent residents and U.S. citizens. This change is easy, it is simply a one line update to the already existing policy memo.  Hundreds of thousands of folks would qualify to finally, safely reunite, without spending more than a year apart waiting for a waiver abroad.  They would process the waiver here, travel to the consulate for their interivew with their approved waiver in hand,  and reenter the US usually less than 10 days later.  Obama cannot eliminate the requirement that the person leave the US to visa process, unless–see below!
Expand ‘parole’
The government currently allows “parole in place” for undocumented immigrant parents and spouses of U.S. military members – effectively letting them change to “parole” status in the United States if they are already in the country. This, with what is now a legal entry, they can adjust their status in the U.S. to permanent residence as immediate relatives, if their child is 21 years old.  
Obama is considering expanding the program for undocumented immigrants whose children are citizens.  This is the 900 pound gorilla in this proposal. It would allow almost 3 million undocumented immigrants obtain permanent residence through their children, not necessarily right away, but when the child turns 21.  This solves a major problem with our waiver law, which requires consular processing for folks who entered undocumented, but who cannot apply for a waiver through the children, as there is no waiver in the law.  
Promote the naturalization process
Currently, the naturalization fee is $680. To encourage people to begin the citizenship process, DHS would take 50 percent off the fee for the first 10,000 applicants.  What can I say besides, it’s about time.  This fee is far too high for many folks.  Obviously it will be tied to income, and justifiably so.
And, that is it, there are many other things Obama can do, and we have explained how he has this authority.  Now we need to see if he has the spine to make it happen, because it will relese a torrent of vitriol from the anti-immigration portion of the GOP.
Finally, please understand, NOTHING is final.  Do not Hire or pay anyone to do anything.  But you need to prepare for this, so begin gathering your tax returns for the last 10 years, get evidence of your physical presence, take pictures of yourself i the US today with today’s papers, send facebook messages and document where you work, where you go to Church, and who you spend time with.  Save your receipts of rent, payments, and money transfers.  And, of course, save your money, because this will not be free.  Since Congress will likely refuse to fund this, these changes will all need to be self-funded.  Expect filing fees of around $1,000.  Call us with any questions, ask 404-816-8611.
Charles Kuck

Managing Partner

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