Perhaps you have heard that President Barack Obama recently declared himself King and tore up the Constitution to thwart the rule of law regarding immigration. Well, that’s not exactly true. The president did give a speech and published two presidential memoranda on immigration. Those two memos, however, were both rather vague and announced some pretty uncontroversial ideas, such as “…streamline and improve the legal immigration system…” and “...modernize the information technology infrastructure underlying the visa processing system…”

The controversial policy changes have been left to the cabinet members of the relevant agencies; particularly Homeland Security and Labor. There are several changes coming to the inner workings of the immigration system – things that should improve the efficiency and customer service aspects of the bureaucracy quite a lot. But nobody cares about that, unless they are trying to hire an immigrant worker, petition for a family member, or work on immigration cases, as I do.

The really big news about the executive action is the shift of enforcement resources away from “wide net” interior sweep toward a targeted approach against dangerous criminals and recent arrivals, and concentrating on the Southwestern border. As part of this kinder/gentler approach, the secretary of Homeland Security (at the president’s direction) has expanded the Deferred Action for Childhood Arrivals program (DACA) and created an additional class of persons eligible for deferred action: parents of US citizen or lawful permanent resident children. This new program is called the Deferred Action for Parental Accountability (DAPA).

Is this executive amnesty? Not really. Amnesty implies forgiveness of a violation of immigration law (e.g. illegal entry or visa overstay) and a path to permanent status or citizenship. DACA and DAPA provide only a temporary formal deferral of a person’s removal from the United States. It does not end the threat that eventually, even a DACA or DAPA beneficiary will face deportation. What DACA and DAPA have done and will do is allow some people who have been living here without documents to come out of the shadows; get temporary permission to work, obtain a legitimate social security number, file a proper tax return, and get a legal driver’s license. It allows people to stop breaking the law out of necessity.

If you are in the self-deportation camp (the philosophy that we should make living here such an awful and treacherous experience that undocumented people will voluntarily choose to leave) you are not going to like these measures. I really can’t help with that. I would only point out that we are talking about persons who entered the United States when they were children and/or are parents of US citizen children and who have resided in the country since 2009. I personally am not interested in discovering how spiteful, horrid, petty and mean we can be to these folks – but maybe that’s just me.

Sure, I am biased; this will be good for my business. In truth, I also am hoping that these program changes will last long enough to see a comprehensive immigration reform act pass through Congress. But, biased or not, I also have likely met more immigrants (legal or otherwise) than many Bar News readers, in my close to 20 years as an immigration lawyer. That is how I know that many of them will flourish when given this chance.

Having even a temporary status can allow them to seek a better job for higher wages, pursue higher education (although without financial assistance), and have some stability to make financial decisions like renting a better apartment, registering a car, opening a bank account – things many of us take for granted. These are all positives for the previously undocumented and for the state’s economy and public safety in general.

I commented here back in May on a change to NH law for 2015 that will increase the penalty for first offense driving without a license from a violation to a misdemeanor, if the driver had never had a valid license. I suspect this change will mostly impact undocumented immigrants who are not eligible to receive a New Hampshire driver’s license. Yet they still have to get kids to school, bring home groceries from the store, and get to work and back – usually on a non-Uber-ready budget. For some, but by no means all, DACA and DAPA will change that, so they can stop looking over their shoulders and get on with living their lives.

The real changes take shape in a series of companion memoranda issued by the Departments of Homeland Security and Labor detailing how the executive action is to be carried out.

Some of the changes represent a sharp break from past practices and might be litigated, overridden by Congress, or revoked by the next administration. Some of these changes, however, probably should have been made a long time ago and will likely remain in place for years to come.

Perhaps the biggest and most controversial parts of the plan involve changes to enforcement policies toward undocumented immigrants. The executive action provides three key changes in that sphere:

 • The Deferred Action for Childhood Arrivals (DACA) program is being expanded. The program will defer the removal of and allow employment authorization (for three years) for persons who entered the United States prior to their 16th birthday. The cutoff date for arrival in the United States has been moved from 2007 to Jan. 1, 2010, and the upper age limit (31) for applicants has been removed. The changes are supposed to take effect within 90 days.

 • A new Deferred Action for Parental Accountability (DAPA) program will also grant deferral of removal and employment authorization to parents of U.S. citizen or lawful permanent resident children born on or before Nov. 20, 2014. The parent must prove continuous residence in the U.S. since Jan. 1, 2010, to qualify, and cannot qualify if he or she is considered to be in a specific “enforcement priority group.” This aspect should take effect in 180 days.

 • The Department of Homeland Security has been instructed to adjust its enforcement priorities away from interior enforcement against persons with no criminal record or minor criminal records and to devote more resources to border enforcement and interior enforcement against violent criminals, gang activity, terrorists or other national security threats. The administration is calling this a “felons not families” policy.

The effects of these changes on New Hampshire will likely be modest, given its relatively low foreign-born population. Still, for people who have been living in the shadows for many years, the opportunity to have employment authorization and a driver’s license can mean increased job mobility, better utilization of their skills, higher wages, and increased consumer spending.

New Hampshire recently made driving without a license a class B Misdemeanor (effective Jan. 1, 2015) so this is timely for many persons who previously were not legally able to obtain a driver’s license.

Business-related reforms

Another set of reforms are aimed directly at improving business immigration.

Only Congress can increase the number of employment visas available in a given year. However, a few adjustments have been made through executive action to make it easier to attract and retain well educated and high skilled workers:

 • In the past, dependents of H-1B skilled workers (H-4 visas) have not been authorized to work. That will be changed in January 2015. That should have a positive economic impact right away.

 • The waiting times for employment-based green cards are very long (often many years), so people sometimes run into problems while waiting. They may run out of time on their temporary visas, others may get a promotion or have to take a new job (if a company closes or changes hands), and this has sometimes been grounds for denying their green card application. Potential fixes for these issues are being considered by the Department of Homeland Security, although no timeline has been announced for implementation.

 • Other areas of improvement in the business immigration arena include broadening and extending the Optional Practical Training (OPT) programs for students, especially in a STEM program; making user-friendly improvements to the

Program Electronic Review Management (PERM) labor certification program, which underlies the employment-based permanent resident process; and liberalizing the immigration rules for highly capitalized immigrant investors and for persons with exceptional abilities and advanced degrees.

Additional initiatives in various areas that needed attention were also included, such as: creating an interagency workgroup on worksite immigration enforcement; reorganizing the joint agency operations on the southern border and reviewing the personnel composition and compensation at Immigration and Customs Enforcement; making naturalization (U.S. citizenship) more affordable; and easing the path for immigrant families of military enlistees.

All of these announced measures are temporary in nature and can only soften the edges of our broken immigration system rather than repair it. There are still many additional reforms needed to make the immigration system work efficiently, humanely and to the highest benefit of the United States. Comprehensive reform will have to wait for a legislative fix from Congress.

Randall A. Drew, principal of Drew Office, Bedford, has been practicing immigration law in New Hampshire since 1998. He can be reached at 603-644-3739 or randall@drewpllc.com.

Release Date: October 17, 2014