On November 20 and 21, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system. The series of executive actions presented by the administration include new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents.
Acknowledging the failure to reach a legislative solution that addresses the fate of unauthorized immigrants who have lived in the country for years, the President authorized the Department of Homeland Security (DHS) to significantly expand its use of deferred action to provide temporary protection from removal for millions of unauthorized immigrants currently in the U.S. This will be accomplished through expansion of the current Deferred Action for Childhood Arrivals (DACA) program, as well as the creation of a new deferred action program, Deferred Action for Parental Accountability (DAPA).
What is the new DAPA program?
The Deferred Action for Parental Accountability (DAPA) is a prosecutorial discretion program administered by USCIS that provides temporary relief from deportation (called deferred action) and work authorization to unauthorized parents of U.S. citizens or Lawful Permanent Residents (LPRs). The DAPA program resembles the DACA program in some important respects, but the eligibility criteria are distinct.
The program will be open to individuals who:
- have a U.S. citizen or LPR son or daughter as of November 20, 2014;
- have continuously resided in the United States since before January 1, 2010;
- are physically present in the United States on November 20, 2014, and at the time of applying;
- have no lawful immigration status on November 20, 2014;
- are not an enforcement priority, which is defined to include individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators
- present no other factors that would render a grant of deferred action inappropriate; and
- pass a background check.
DAPA grants will last for three years. The DAPA program should be ready to receive applications within 180 days (USCIS plans to begin accepting application on May 19, 2015).
How will the government ensure that people eligible for DAPA are not deported before the new program is in place?
DHS has instructed officials in both Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to identify DAPA-eligible individuals who are already in their custody, in removal proceedings, scheduled for deportation, or whom they newly encounter, and to exercise discretion favorably for those individuals. For eligible individuals in immigration court or before the Board of Immigration Appeals, ICE lawyers are instructed to close or terminate their cases and refer those individuals to USCIS for case-by-case determinations.
How will the deferred action programs be financed?
The deferred action programs will be financed by a user fee of $465 per application. DHS has stated that “there will be no fee waivers and there will be very limited fee exemptions.”
Why can’t the President just grant a permanent legal status and be done with this?
The new DAPA program is a temporary measure, designed to eliminate the fear of removal while the country comes to a resolution about permanent legal status for the unauthorized. The executive branch can defer action, effectively declining to remove an individual, but only Congress can determine who is eligible for permanent legal status and citizenship.
Why isn’t DAPA an amnesty?
The DAPA program is a temporary measure that does not meet either the technical or the political definitions of amnesty in use today. Technically, an “amnesty” is a governmental pardon, often issued to individuals or groups convicted of crimes, and it represents a form of forgiveness in which the offending party is admitted back into the fold. The 1986 legalization program was often referred to by its supporters as an amnesty—under that program, people who were in the country unlawfully could come forward, prove that they met certain criteria, pay fees, and obtain a green card. Over the years, the term amnesty has been appropriated by immigration critics and restrictionists to imply a “something for nothing” deal, in which legalization is viewed as a reward for entering the country unlawfully. For many immigration critics, anything short of deportation is an “amnesty,” irrespective of the stringent criteria put in place to ensure that unauthorized immigrants pay penalties and fulfill numerous other requirements to obtain a legal status. In the case of DAPA, the program offers some unauthorized immigrants a temporary reprieve, but offers neither permanent legal status nor a chance at citizenship. That power remains in the hands of Congress.
Will DAPA recipients be eligible for public benefits?
DAPA recipients will not be eligible for federal public benefits, including federal financial aid, food stamps, and housing subsidies. The New York Times has reported that the Obama Administration will promulgate regulations to exclude DAPA recipients from any benefits under the Affordable Care Act.
Whether DAPA recipients will be eligible for state benefits and opportunities like driver’s licenses, in-state tuition, and professional licenses will turn on the law of the state.
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