Executive Action

 

On November 20, 2014, President Obama addressed the country and finally delivered on his long outstanding commitment to “fix the broken immigration system.”  However, he had to do so under his presidential authority to take Executive Action, which does not offer the same protections as laws that are passed by Congress.  This was a measure taken by the President after the House of Representatives refused to vote on an immigration bill that was passed by the Senate nearly a year and a half ago.  Based on the initiatives of the Executive Action, projections show that approximately 4.9 million undocumented individuals may be eligible for lawful status that were not previously eligible. 


The initiatives include the following: 1) expanding the Deferred Action for Childhood Arrivals program by eliminating the restriction on individuals over the age of 31 and pushing back the continuous residence in the U.S. requirement to January 1, 2010 ; 2) creating a new program called Deferred Action for Parental Accountability for parents of U.S. Citizens and Lawful Permanent Residents who have resided in the country continuously since January 1, 2010 and are not a priority for removal; and 3)  expanding the provisional waiver of unlawful presence to include spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to be eligible for a provisional waiver if a visa is available.


The actions taken by the President have caused controversy in the media and received extensive criticism by members of the Republican party who insist that the president’s actions exceeded the scope of his authority and were unconstitutional.  There have been threats to block funding of the programs and challenge the executive action in the Supreme Court.


 History shows that numerous presidents in the past have taken executive action to address immigration issues, many in an attempt to keep families together.  The major difference of President Obama’s action is that it targeted a historically large number of undocumented individuals who will qualify for a work permit and deferred action for a period of three years.


For those who benefit from the initiative to expand the program for the provisional waiver of unlawful presence, the action will provide an easier path to lawful permanent residence because they will not have to depart the country in order to apply.    Importantly, the Executive Action will also clarify the meaning of “extreme hardship” that must be demonstrated for approval of a waiver, which has been a highly scrutinized term that has caused many families to be torn apart.  Given the goals of the executive action it is likely that the clarification of extreme hardship will lead to a higher number of waiver approvals.  


So the question remains did President Obama do anything to fix the immigration system? The short, but complicated answer is, yes.  He took action that will result in more undocumented individuals obtaining lawful permanent resident status through the provisional waiver.  He also took action that will result in thousands of individuals who are currently in removal proceedings to be eligible for relief who would have otherwise been deported.  This will result in the unity of more families, the ability of undocumented individuals to obtain a driver’s license and more opportunity to obtain employment. However, the action is not the immigration reform that many had hoped for.  It does not provide a path to lawful permanent resident status for those granted deferred action, nor a path to citizenship and the policy could be taken away after President Obama serves his final term.  Overall, this executive action was a major step in the right direction to fix the immigration system.  It will benefit more undocumented individuals than any other action taken by a President in the history of our country and provide more families with economic and social stability.