Proposals for Executive Action On Immigration

By Reuben S. Seguritan

November 05, 2014

President Obama promised to take action on immigration after the midterm election. Now that the election is over, the President is expected to announce his new immigration program. It is not yet certain what the policy changes will be but we are hopeful that it would include relief from deportation for millions of undocumented immigrants.

Many believe that just like the Deferred Action for Childhood Arrivals (DACA) program created in 2012, the Obama administration would identify sub-groups of immigrants who would be eligible for deferred action. Although the grant of deferred action does not grant legal status, it would protect undocumented immigrants from deportation and allow them to apply for employment authorization and travel document.

Immigrant rights advocates have appealed to the administration to adopt a blanket approach and grant deferred action to all those who would be eligible under the Senate bill. However, if this blanket approach is rejected, immigrant rights advocates have identified sub-groups of immigrants who should be included under a new program.

Immigrants who already have an approved family and work-related visa petitions but who are unable to adjust their status because of visa backlogs should be granted deferred action. Many of these immigrants are subject to the three or ten year bar rule because of unauthorized employment or remaining in the U.S. without authorization. They have opted to remain undocumented in the U.S. as they are unable to benefit from their approved visa petitions.

Parents of U.S. citizen children who cannot petition their parents for green cards until they turn 21 should also be granted deferred action status. Under the 1996 amendment to the Immigration and Nationality Act (INA), the parent of a U.S. citizen child who remained undocumented for one year or longer in the U.S., unlike the spouse of a U.S. citizen, is not eligible to apply for a waiver.

Also, the DACA program should not be limited to those under 31 as of June 15, 2012. It should be expanded to those who entered the U.S. before the age of 16 regardless of their age today. Also, the continuous residence cut-off date should be updated to June 15, 2014.

At present, DACA beneficiaries qualified to enlist in the military under the program Military Accessions Vital to National Interest or MAVNI are limited to those with advanced medical skills, or who can speak certain languages. The program should be expanded to allow a greater number of undocumented immigrants to serve in the military.

Parents and siblings of DACA beneficiaries should also be granted deferred action. Thousands of U.S.-born children have been placed in foster care because their parents have been deported. Expanding the DACA program to parents and siblings would keep the families intact and prevent children from ending up in foster care.

The “grandfathering” regulations under INA 245(i) should be expanded. Under current regulations, an immigrant who is a beneficiary of a petition filed on or before April 30, 2001 may adjust status in the U.S. based on their original petition or a new petition filed after April 2001, even if the beneficiary fell out of status. Although reinstating Section 245(i) would need legislative action, the Administration could expand the regulations that define who is grandfathered under 245(i).

Also, the Temporary Protected Status (TPS) should be granted to Filipino nationals in the U.S. Many countries such as Honduras, Nicaragua, El Salvador, and Haiti, to name a few, were granted TPS after a natural disaster. The destruction in the Philippines brought on by Typhoon Haiyan, which has killed more than 6,000, displaced 4 million and affected in total 16 million people, calls for TPS designation. It will assist thousands of Filipinos while rehabilitation is underway and will without doubt serve its humanitarian purpose.

Deferred action status should also be granted to individuals who are “low priority” for removal or those who are eligible to seek stays of removal under the Immigration and Customs Enforcement (ICE) Morton memo.

These are only a few of the proposed changes to the existing policies which the President can do using his executive authority. While it is true that only Congress can create a path to citizenship, these proposed changes will without doubt provide a solution to the pressing problems of the undocumented today and lay the ground work for a permanent legislative fix from Congress.