By Attorneys Robert L. Reeves and Eric R. Welsh

            On January 29, 2013, President Obama delivered an address in Las Vegas, Nevada to promote the cause for “common-sense, comprehensive immigration reform.”  President Obama noted that now is the time for reform in an area of law “where the differences are dwindling, where a broad consensus is emerging and where a call for action can now be heard coming all across America.”  Indeed, congressional leaders from both parties appear committed to backing legislation to overhaul the immigration laws, and legislators are now well aware that immigrant populations will continue to play a significant role in the future of American politics.  Immigration reform seems imminent.

Immigration reform is not new to the Obama administration.  President Obama’s first presidential campaign platform included a commitment to reform, and in the last two years of his first term, President Obama backed some significant administrative changes to immigration policy that affected millions of noncitizens living in the United States.

In two parts, this article will address recent and forthcoming changes to immigration law and policy.  This first part will summarize the significant policy changes that have already occurred.  The second part will analyze the likely changes that may come in consideration of President Obama’s proposals and the proposals of leading members of Congress.

PROSECUTORIAL DISCRETION

            Starting in 2011, Secretary of Homeland Security Janet Napolitano and directors within the Department of Homeland Security issued a series of memoranda in an effort to expand the use of “prosecutorial discretion” in the context of immigration removal.

The Department of Homeland Security has encouraged agents and attorneys of Immigration & Customs Enforcement (ICE) to exercise prosecutorial discretion in deciding which cases to pursue for removal or deportation from the United States.  ICE agents have been advised to focus resources on high-priority cases involving dangerous criminals, and to make available the option to cancel removal in the case of a person with strong family ties, no criminal record, and other favorable equities.  This policy has resulted in the termination of numerous deportation and removal cases, preventing the break-up of families that were facing seemingly imminent separation.  In addition, the Department of Homeland Security has been much more judicious in deciding which case need to be referred to an immigration judge, with the result that fewer removal proceedings have been commenced when the only violation is a visa overstay.

PROVISIONAL WAIVER

As of March 4, 2013, a new waiver application known as the “provisional waiver” is available to certain immediate relatives who are not otherwise eligible to apply for a green card in the United States.  This will significantly shorten the time that families are separated while family-based applications are pending.

The provisional waiver will be provide significant assistance to persons who are not eligible to adjust status in the United States because of their manner of entry (e.g., entry without inspection, entry as a fiancé but no marriage to fiancé petitioner, entry as a crewman).  The provisional waiver, in its current form, is only available to “immediate relatives” (i.e., spouses, children, and parents of U.S. citizens), but may be expanded in the future to include other visa applicants.

DEFERRED ACTION FOR CHILDHOOD ARRIVALS

Last year, President Obama exercised his authority to put in place an application process known as Deferred Action for Childhood Arrivals (DACA) in order to provide some relief through administrative channels for young persons who have lived in the United States for several years and attended schools in the United States.  In general, DACA is available to a person who: (1) was under the age of 31 as of June 15, 2012; (2) entered the U.S. before the age of 16; (3) has resided in the U.S. since June 15, 2007 up to the present date; (4) is currently out of status; (5) is in school or has graduated from school in the U.S. (or is a veteran of the Coast Guard or Armed Forces); and, (7) has not been convicted of a felony or a significant misdemeanor.

A person who is eligible for DACA can apply for “deferred action,” meaning that the immigration services will take no action to effect that person’s removal from the United States while deferred action is in place.  In addition, a DACA applicant can apply for work authorization, a Social Security number, and a driver’s license.  DACA is granted for a period of two years, and can be renewed upon expiration in two-year increments.  There is no limitation on the number of renewals.

Among other changes that will be addressed in Part 2 of this article, President Obama and members of Congress have expressed the desire to push the DREAM Act forward in order to make DACA relief permanent.  Under the proposed DREAM Act, the work authorizations issued under DACA will lead to permanent residency and citizenship.

These changes that have already taken effect are significant, but the proposals for comprehensive reform that are currently on the table have the potential to be game-changing.  These prospective reforms will be analyzed in the next part of this article.

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