In a bold move, on November 20, 2014, President Obama announced his Immigration Accountability Executive Actions to address flaws in the current immigration system.  The plan contains three parts:

  1. Enhanced border enforcement and employer crackdowns for ongoing immigration violations;
  2. Administrative relief from deportation to allow certain undocumented immigrants to apply to remain in the United States; and
  3. Business-friendly policies to enhance U.S. competitiveness and attract foreign investment and talent.

While the focus has been on the administrative relief, the rest of the plan offers potential improvements for some employment-focused immigration categories:

  •  L-1B specialized knowledge workers:
    • Clarifying the rules to bring greater coherence and integrity, to “enhance companies’ confidence in the program”
  • H-4 spouses of H-1B workers:
    • Providing work authorization to spouses once the H-1B worker’s green card process is well underway
  • Foreign nationals caught in a backlog while seeking permanent resident status:
    • For foreign workers in line for a green card, removing unnecessary restrictions on natural career progression without being tied to one job
    • For their spouse and children, providing work authorization at an earlier stage through a registration process
    • Allowing spouses and children of lawful permanent residents to apply for waivers of unlawful presence without leaving the U.S.
  • For F-1 foreign students eligible to work after graduation from a U.S. college or university:
    • Expanding the degree programs eligible for extended periods of work beyond 12 months
  • For foreign inventors, researchers, and founders of start-up enterprises:
    • Making the “national interest waiver” category available for permanent resident status
    • Offering temporary parole in the U.S. under the “significant public benefit” standard
  • Employers using the PERM process prior to sponsoring foreign workers for green cards:
    • Modernizing the process, including the possibility of expedited, premium processing
    • Identifying demonstrated shortages and surplusages

Building on the existing Deferred Action for Childhood Arrivals (DACA) program, through which young adults brought to the U.S. as children and lack status, the administrative relief plan has the following provisions.

  • Deferred Action for Parents (DAP).
    • Requirements for the parent
      • Have a U.S. citizen child (of any age); or
      • Have a lawful permanent resident child (of any age);
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks;
      • Pay taxes (though evidence of payment of back taxes is not required).
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The process should be available by Spring 2015.

 

  • Expansion of Deferred Action for Childhood Arrivals (DACA).
    • Requirements for the applicant
      • Arrived in the U.S. before turning 16 years old;
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks.
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period, and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The plan is to have applications available by January 2015.

The administrative relief plan, a step in the right direction toward fixing our country’s broken immigration system, has the following limitations:

  • Neither DACA or DAP gives any immigration status.
  • Only temporary reprieve from deportation is available.
  • The programs do not grant green cards or citizenship.
  • They do not provide for any path to green cards or citizenship.
  • They are not available immediately.
  • Many undocumented persons will not be eligible.
  • The plan relies on the President’s prosecutorial discretion authority, recognizing that immigration enforcement is necessarily selective and that Congress funds capacity for about 400,000 deportations each year.

Nevertheless, the plan could expand the legal workforce by about four million.

Employers and businesses should be alert for opportunities to take advantage of the components of the plan.

On Friday, June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a Memorandum stating that DHS would shortly grant a temporary immigration status called “deferred action” to certain young people who were brought to the United States as children and “know only this country as home.” Some news articles about the new policy implied that these young people could enlist in the US Armed Forces. Enlistment in the military, however, is not currently a viable option for persons affected by the announcement–although military enlistment is allowed in the DREAM Act. Furthermore, Secretary Napolitano cannot authorize anyone to enlist in the US Armed Forces–except perhaps the Coast Guard, one of the five Armed Forces and the only Armed Force that is part of the Department of Homeland Security.  Thus, the Memorandum will not help those DREAM Act beneficiaries who have sought to join the US Armed Forces.

Unauthorized immigrants are not currently allowed to enlist in the US Armed Forces voluntarily (although they may be drafted, if there is a military draft). People with work permits or “deferred action” are likewise currently ineligible for voluntary enlistment. The announcement by DHS does not change the military enlistment law found at 10 United States Code § 504.  This law limits military enlistments to US citizens; US nationals; lawful permanent residents; certain lawfully present persons from Palau, Micronesia, and the Republic of the Marshall Islands; and certain other persons whose enlistment has been determined by a Service Secretary to be “vital to the national interest.” No Service Secretary has to date authorized the enlistment of people who have merely been granted “deferred action.”

While it is possible that a Service Secretary might someday authorize the enlistment of a person with “deferred action” and a work permit, that has not yet happened. The DHS Memorandum did not expand the categories of non-citizens who are eligible to enlist in the US Armed Forces (which include the Army, Navy, Marines, Air Force, and Coast Guard, and their associated Reserve Components, including the National Guard).

The DHS Memorandum does state that “honorably discharged veterans” who are “not above the age of 30” and who were “present in the United States” on June 15, 2012 are eligible for deferred action under the terms of the new DHS policy. Presumably, an “honorably discharged veteran” would be anyone who served honorably–including veterans who have honorable discharges, entry-level discharges characterized as honorable,  or general discharges under honorable conditions. Because most honorably discharged veterans who are not above age 30 and meet the Memorandum’s other requirements are eligible for naturalization under Immigration and Nationality Act § 329, however, few will likely need deferred action through the plan announced by Secretary Napolitano. Any honorably discharged veteran who has questions about his or her eligibility for naturalization should see a competent immigration attorney for details about the military naturalization process.