Immigration Reform

On November 20, 2014, President Obama announced a series of immigration reform plans to be implemented in 2015. This plan came after Congress failed to pass a comprehensive immigration reform bill, despite its passage through the Senate. The President’s new plan has three objectives:

1)    Crack down on illegal immigration at the border;
2)    Deport felons – not families; and
3)    Accountability for persons residing in the United States with US citizen or lawful permanent resident children through payment of taxes and background checks.

The President’s plan has two components – 1) deporting criminals and – 2) reforming existing programs to provide accountability, tax revenues and efficiency for persons who have long awaited lawful status and citizenship.

Immigration reform is needed to strengthen our society and our financial well -being. Something all Americans need to understand is that we cannot afford to deport 11 million people currently living in the United States without lawful status. AnImmigration reform update is needed for financial reasons as well as humanitarian reasons. Implementation of the President’s plan is predicted by a conservative think tank to reduce the deficit by 2.5 trillion dollars, strengthen the GDP and stimulate the economy.

Many people who do not have lawful immigration status come to our country to flee unstable, dangerous places and pursue a better life for their families. They have U.S. citizen children, they enrich our communities with an exceptional work ethic and strong family values. These people have no criminal infractions and often have been victims of crimes themselves.

Deporting Criminals, Not Families

Immigration and Customs Enforcement (“ICE”) has long exercised discretion as to who it should focus time and resources on deporting. This means that if ICE is aware of a convicted felon who lacks status and a mother of three US Citizen children who has no arrests, it will use resources to deport the convicted felon before it may ever contact the mother.

This is referred to as the exercise of prosecutorial discretion (“PD”). PD has been going on for decades as ICE has long recognized that resources are limited.

Contrary to what many think, President Obama has deported more people than any President in American history as can be seen by Pew Research here.

President Obama’s immigration reform detailed three types of people that are enforcement priorities, recorded here.

Here is a brief summary of the immigration plan:

strong>Priority 1 High Level Criminals

• persons suspected of terrorist activities or supporting terrorists
• persons apprehended at the border
• persons who participated with street gangs
• persons with felony convictions
• persons with convictions for “aggravated felonies” as defined under the immigration laws (Immigration and Nationality Act)

Priority 2 Lower Level Criminals and Illegal Entrants

• persons convicted of 3 or more misdemeanors (not traffic violations)
• persons convicted of “significant misdemeanors” such as: domestic violence, sexual abuse or exploitation; burglary; possession or use of firearms; drug distribution or trafficking
• Driving Under the Influence; any crime where the person was sentenced to 90 days or more confinement
• persons who have US visa abuses; or have abused the visa waiver program (90 days entry without visa, typically from Europe)
• persons apprehended anywhere who did not legally enter the United States on or before Jan. 1, 2014.

Priority 3 Foreign Nationals with Final Orders for Deportation

• foreign nationals who have been ordered deported from the United States on or after Jan. 1, 2014.

The President has prioritized criminals for deportation from the United States by directing ICE to remove such persons. Hard-working, law abiding families are not prioritized by Obama on immigration reform plans.

Reforming Existing Programs

President Obama has made provisions for other existing programs and published detailed guidelines outlining the new program available here:

1) Deferred Action for Childhood Arrivals (DACA) will now include people who have been living in the United States as of January 1, 2010, before reaching the age of 16, and will no longer have an upper age restriction of 31 years of age. Additionally, DACA recipients will get work authorization for a period of three (3) years, not two (2) years. This program is currently subject to a temporary restraining order issued by a Texas District Court Judge. The Obama Administration appealed the order to the Fifth Circuit. Until a decision is made, the program is on hold.

2) Deferred Action for Parental Accountability (DAPA) is a new program that will allow persons who were parents of U.S. citizens or Lawful Permanent Residents (green card holders) as of 11/20/2014 who have resided continuously in the United States since January 1, 2010 and have not committed certain criminal offenses to obtain employment authorization. This too is on hold pending the Fifth Circuit’s decision.

3) Provisional Waivers of Unlawful Presence will now be available for undocumented persons who have lived in the United States for at least 180 days who are the sons and daughters of U.S. citizens or the spouses, sons or daughters of Lawful Permanent Residents (green card holders). This means that persons can ask for a waiver of unlawful presence from the United States without going abroad and waiting for a consular post to adjudicate the waiver request for several months outside the country.

4) Pre-registration for foreign nationals who have approved I-140 Petitions and are waiting for a visa number to file for adjustment of status (green card). This will be a huge benefit for persons who have an approved visa petition but cannot file for Employment Authorization (“EAD”) due to the waiting line for visas. The persons will be able to apply for a travel document and EAD.

5) H-4 Employment Authorization will become available for certain spouses of H1-B employees who have an approved visa petition but cannot file for adjustment of status because they are waiting for a visa to become available.

6) U.S. Citizenship Application Fees may be able to be paid with a credit card to encourage individuals to apply for U.S. citizenship.

The President’s Executive Action is estimated to provide relief to 5 million people.

The latest immigration reform news available from USCIS can be viewed here.

Criminal Background Checks and Taxes

In order to qualify for DACA, or DAPA persons must first pass a background check. If it is discovered that the applicant committed certain crimes, he/she will not be granted DAPA and will likely be referred to deportation proceedings before an Immigration Judge. Additionally, DACA and DAPA recipients will be required to pay taxes. In reality, these individuals are likely already working, but Uncle Sam receives no revenue from them. We will all benefit from the latest on immigration reform.