President Obama’s executive actions on immigration reform will be released in the coming days, weeks, and months. Here is a preliminary summary based in part on White House briefings to the American Immigration Lawyers Association:
1. Enforcement Priorities
Many of the existing Immigration and Customs Enforcement (ICE) memos on enforcement priorities and prosecutorial discretion will be replaced by a new memo with three priorities: (1) Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and persons apprehended on the border; (2) Persons convicted of serious or multiple misdemeanors and very recent border crossers (those who entered after January 1, 2014); and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. The memo will contain strong language on the use of prosecutorial discretion.
2. Deferred Action Benefiting Approximately 4.4 Million Undocumented Individuals
Two deferred action initiatives will be rolled out that are estimated to benefit 4.4 million undocumented individuals:
(a) Deferred Action for Parents (DAP): Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010, and who pass background checks and pay back taxes; and
(2) Expansion of Deferred Action for Childhood Arrivals (DACA): The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010. Both of these initiatives will provide deferred action for three years. The expanded DACA should be up and running in 90 days and deferred action for parents in 180 days. Note: no initiative specifically for parents of DACA recipients was included.
3. I-601A Waiver Expansion
The I-601A provisional waiver will be expanded to include spouses and children of lawful permanent residents. An expansion and clarification of the definition of “extreme hardship” is also expected.
4. Timing of Filing for Adjustment of Status
The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.
5. Business Immigration Changes
A number of business immigration improvements are to be announced. For example, certain investors will be eligible for parole into the U.S., or for parole-in-place, and national interest waivers could be available for entrepreneurs, researchers, inventors, and founders. Also, the term “same or similar” for AC-21 purposes will be clarified, L-1B guidance will be released, the H-4 EAD regulation will be finalized, and the length of time permitted on OPT for STEM graduates will be expanded. Additionally, the rulemaking process will be undertaken to modernize the PERM labor certification program and may include a harmless error provision.
6. Visa Modernization
There will be a Presidential Memorandum directing the various immigration-related agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law. Issues such as whether derivatives should be counted towards the visa quota and whether past unused visa numbers can be recaptured are expected to be included in this effort.
7. State and Local
Secure Communities will be discontinued and replaced with a new initiative, the Priority Enforcement Program (PEP). Details are still forthcoming on what PEP will entail, but in certain circumstances, detainers may be replaced by requests for notification to ICE when a law enforcement entity is about to release an individual.
Parole-in-place will be expanded to include families of individuals trying to enlist in the armed forces, as some branches of the military ban applicants who have undocumented family members.