On November 20, President Obama outlined a series of executive actions related to immigration reform. Let's address some of the main questions we have received from clients since the announcement:
Q: What was announced?
The President announced a number of steps through administrative actions to be implemented by the Departments of Homeland Security. None of the changes rely on congressional approval. The program has four major components:
Enforcement prioritization: The Administration will prioritize border enforcement and focus interior enforcement mainly on individuals who pose security risks; the implication is that the flow of new unauthorized border-crossers could decrease, while enforcement for most unauthorized immigrants already in the US would be diminished.
Incremental expansion of work visa programs: The program would incrementally expand immigration of skilled workers, by
- allowing spouses of H1-B visa (high-skilled) workers to work if they have a green card application pending;
- allowing high-skilled workers to change jobs more easily;
- "modernizing" the requirements for L-1 visas, which allows companies to transfer existing employees to US offices (this is an important program for parts of the technology industry);
- granting green cards or temporary status to individuals with "exceptional ability" or inventors, researchers, and founders of start-up enterprises, and
- expanding the Optional Practical Training (OPT) program, which allows students graduating from US universities to work for up to 29 months in the US following graduation.
Expansion of existing deferred action program: The President's executive order would expand the existing Deferred Action for Childhood Arrivals (DACA) program. The program was established in 2012 to allow unauthorized immigrants born after 1981 who arrived in the US prior to age 16 to avoid removal and to gain work authorization. To qualify, individuals must also be at least 15 years old at the time of application and have graduated from high school. Under current rules, one must have lived in the US continuously since 2007 to qualify, but the Obama Administration is now changing the cutoff date to 2010, and lifting the age requirements.
Establishment of new deferred action program: Under a new program known as Deferred Action for Parental Accountability (DAPA), unauthorized immigrants who are the parents of U.S. citizens or legal permanent residents (i.e., green card holders) and who have been in the country for more than five years can receive relief from deportation and work authorization for three years, subject to a background check and a $465 fee.
Q: When would the changes take effect?
Approvals for deferred action are likely to begin in Q2 or Q3 2015. From the time the President announced the original DACA program in 2012, it took two months to begin accepting applications and four months for approvals to begin in earnest. This time, the Department of Homeland Security (DHS) has set a deadline in February to begin accepting applications for the expanded DACA program, and in May for applications under the new DAPA program. Assuming two months to process the applications, work authorizations under the new programs seem likely to start being granted in Q2 or Q3 2015.
Q: How many people would be potentially eligible for these programs?
In all, the changes look likely to affect around 5 million unauthorized immigrants plus 100k to 200k skilled workers. The changes to the existing DACA program look likely to increase the eligible population by about 300k, based on estimates by the Migration Policy Institute (MPI). Working-age adults would account for most of this increase. The new deferred action program for parents of citizens would have a larger effect. Estimates from the Pew Hispanic Center and MPI suggest that, as of 2012, 3.1 to 3.3 million unauthorized immigrants had lived in the US for at least five years and had minor children who were citizens or held green cards. However, since the DAPA program also covers parents of adults who are US citizens or permanent residents, the total universe of eligible immigrants may be somewhat greater.
The effect on the number of skilled immigrants with work authorization is somewhat less clear, but the new policies look likely to apply to 100k to 200k individuals in the first year. According to the Government Accountability Office (GAO), around 125k foreign students were approved to work through the OPT program on average in 2013, but only 25k of these took advantage of the longer 29-month work period for science, technology, engineering and math (STEM) graduates. Details of the changes being contemplated are not yet available, but even if the STEM program doubled it would only add 25k. DHS estimates that authorizing the spouses of H1-B workers to work would increase the number of potential workers by about 100k at the outset and by about 30k per year thereafter, and that about 10k individuals would take advantage of the new entrepreneurial visa each year.