A Message from the Staff: Aimee Heitz

2014 Administrative Action on Immigration:
What is it and how will it affect our Clients?
By:  Staff Attorney Aimee Heitz

Aimee Heitz

On November 20, 2014, President Obama announced his plan to take executive action on Immigration. This plan, once in effect, will impact millions of undocumented immigrants in the United States. The action proposed will bring immigrants out of the shadows; it could help to alleviate common plights of the undocumented, including wage theft, economic exploitation, deplorable living conditions, and other physical, emotional, and sexual abuse inflicted on those without ability to come forward.  Although Obama’s plan is far from fixing the United States’ broken immigration system, it is a bold beginning.

There are few details associated with the big announcement. Since November, additional memoranda have been released by the administration, but even these contain limited detail. Immigration practitioners have been forced to comb through vague information until specific guidelines can be implemented.

This post will attempt to summarize sections of the Executive Action which may directly affect the Clinic’s clients and volunteers.

New Immigration Benefit Programs

DACA Expansion
In June 2012, President Obama implemented a plan known as Deferred Action for Childhood Arrivals or “DACA”. This plan covered immigrants that came to the United States as children and met certain requirements. DACA allowed those individuals to apply for work authorization for a period of up to two years subject to renewal. The basic requirements were that an immigrant had to be under age 31 as of June 15, 2012, had to come into the U.S. before his or her16th birthday, had to continuously reside in the U.S. since June 15, 2007, had to be physically present in the U.S. on June 15, 2012, had to be currently enrolled in school or obtained a high school diploma, and had no significant criminal record.

The new executive action announced in November 2014 expands DACA so that many more immigrants could potentially qualify. In addition to the other requirements, there are three major modifications or expansions: (1) the age cap of under 31 years old as of June 15, 2012, is removed, (2) the start date of the continuous presence requirement was amended to January 1, 2010, and (3) the valid status under DACA (also, the validity of the work authorization) will be granted for three years subject to renewal instead of two.

What does this mean for our young immigrant population in Indiana? To put it plainly, one could apply for DACA as long as they entered on or before January 1, 2010. Meaning those individuals that crossed in the United States between 2007 and 2010 could qualify for DACA assuming the other qualifications are met. Moreover, the age limitation for applying is removed. Thus, as long as an individual entered before age 16, attended school, and does not otherwise have a significant criminal history, he or she can apply for DACA.  DACA has been expanded to include more than just presently young adults. Based on what we do know, it would not matter if an applicant for DACA was 55 years of age so long as the other requirements were met.

Nationally, this expansion will affect around four million individuals. Yet, the DACA expansion will not come into effect until February 2015.

The New DAPA Program
President Obama’s plan also created a new classification of deferred action entitled Deferred Action for Parental Accountability or “DAPA.” DAPA is very similar in nature to the requirements of DACA except that this classification is based on one being a parent to a US Citizen or Legal Permanent Resident (LPR) “son or daughter.” The term son or daughter is not by accident. It is a term of art meaning that the U.S. Citizen or LPR child can be a minor or an adult.

The specific requirements for DAPA are that a potential applicant:  entered the United States on or before January 1, 2010, was the parent of a USC or LPR on or before November 20, 2014, was physically present in the U.S. on November 20, 2014, has no significant criminal history, and is not otherwise an enforcement priority for removal from the US.  Although additional guidelines have not been announced, this DAPA application will also include a requirement that the immigrant applicant pay back taxes for amounts owed to the IRS. If the applicant receives DAPA, he or she will receive three years of employment authorization with the possibility for renewal.

The DAPA application will not be available until May 19, 2015. At such time, we hope to have additional details on the application itself and the requirements.

DAPA and DACA in Indiana
The DACA expansion and DAPA are essential because they allow for temporary employment authorization for millions of undocumented immigrants who previously had no immigration recourse.  The immigrant recipients can gain legal employment, subject to U.S. employment laws and income taxation. This employment authorization document (EAD) allows an undocumented immigrant to gain a social security number and an Indiana driver’s license. In Indiana, an undocumented immigrant typically has no recourse to get a driver’s license without an EAD and social security number.

However, DAPA and DACA are not permanent fixes.  These programs are NOT avenues to gaining LPR status or U.S. Citizenship. Work authorization will be granted in three year periods subject to renewal for as long as the program is in effect. Given the fact that this is an executive action on immigration, an incoming president could amend or ever suspend the program. This would leave millions of immigrants again without status. It is hard to say what the next election cycle will bring.

Moreover, these programs do not make the applicant eligible to receive most public benefits in Indiana. DACA recipients will still be ineligible to qualify for federal student aid. DACA recipients will also still qualify as “out of state” residents in the state even though they could have been residing in Indiana for most of their lives.

Increased Border Enforcement and New Enforcement Priorities for Deportation
The November announcement did not only include immigration benefits, but it also included new removal and deportation priorities that will come into effect on January 5, 2015.  Essentially, deportation will be divided into three separate priorities:  (Priority 1) apprehensions at the border after November 2014, threats to the public safety and national security, gang members, and aggravated felons, (Priority 2) immigrants with significant misdemeanors or three+ misdemeanors, recent illegal entrants, and abusers of the visa or visa waiver program, (Priority 3) individuals with final orders of deportation issued after January 2014.

This proposed priority system is beneficial in that it aims to go after the higher level criminals in the U.S. and not “hardworking mothers” as President Obama related in his speech. It is a novel approach given that the U.S. immigration system only has the capacity to remove around 400,000 immigrants each year. There are around 11 million undocumented immigrants in the United States. A priority enforcement system was long overdue. This change should, we hope, prevent the issuance of notice to appears (NTAs) for immigration court for minor traffic violators.

Yet, there are still worries associated with this broad plan. First, how will the announcement affect individuals coming into the United States with the intention of claiming asylum at the border? Will they be swiftly removed and returned to the country where they feared for their lives? What will happen to the thousands of families detained in Texas? How will their cases be adjudicated given their recent entry dates and detention? We do not have these answers.

The new plan also calls for an additional 20 thousand agents to be sent to the southern border. This is a confusing move considering that the Obama Administration stated that the border had never been more secure. Despite the summer swell of undocumented immigrant children at the border, the number of illegal entrants is at its lowest number in over two decades. So, what will be the reason for the additional agents? Why did the plan not include any additional oversight of border agents whose accountability varies depending on the location?

Conclusion
Despite the concerns addressed herein, President Obama’s plan will be a hallmark to this presidency. His new plan will bring millions of immigrants relief from deportation and keep families united.  There is still much we do not know, not to mention Indiana along with several other states is suing President Obama over the legality of his new administrative action. To what outcome, we do not know.

We can only hope that this action will be what it is professed to be:  the first step in amending the broken immigration system. For now, I remain anxious and excited about what this means for many immigrants in Indiana.

Volunteer
The Clinic is working hard to disseminate information to the community. How can volunteers help? Volunteer! The numbers of potential clients will soon begin to swell at the Clinic. In order to meet this demand, we need volunteers like you who are willing to help. The Clinic will keep volunteers posted about new volunteer days and CLE opportunities.

Disclaimer:  The thoughts and concerns expressed in this blog post are personal opinions and not attributable to the Clinic. Portions of the November 20th announcement were not included in this post. President Obama’s plan also includes changes to Secured Communities, amendments to many business related visa programs, an expansion to the provisional waiver (601A program), and some changes to the naturalization process, among other small provisions.
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