Updated by Dara Lind on October 30,
2014, 1:30 p.m. ET @DLind dara@vox.com
With the 2014 midterm elections over, the Obama administration is turning to its big post-election agenda item: immigration relief.
President Obama has promised that he's going to take executive action on immigrationbefore the end of 2014; on November 4th, when press secretary Josh Earnest got asked about the president's agenda, immigration action was the first (and only) priority that got mentioned. Rumor has it that the Department of Homeland Security and the Department of Justice are submitting their recommendations for what exactly the president should do by early November.
With Republicans having won the Senate, some people are skeptical that Obama's really going to follow through on major unilateral action. But the administration has promised, explicitly, to do just that.
Obama's anticipated plan is expected to include relief from deportation for millions of immigrants. The new program might build on the Deferred Action for Childhood Arrivals (DACA) program from 2012, which allowed young immigrants who would have benefited from the DREAM Act to apply for two years of protection from deportation, and for work permits. Or it might take a slightly different form, but one that would still allow some unauthorized immigrants to be protected from deportation, and be allowed to work, without officially giving them legal status.
Nothing's known for sure about what the new immigration program would do — after all, the White House hasn't made a final decision yet. And it's always possible that they'll back away entirely, though it would probably upset Latino voters if they did. But here's what we know they're considering, and what looks likely to make it into the final package.
How
many people could be covered?
Estimates tend to be in the mid to low
millions.
Legally
speaking,the president could extend deferred action to all 11
million unauthorized immigrants. That would be unprecedented. If he wanted to
follow precedent slightly more closely, he could protect all of the 8
million or so unauthorized immigrants who would qualify for legal status under
the immigration
reform bill the Senate passed last year — just like he used DACA to
protect would-be DREAM Act beneficiaries after the DREAM Act failed.
But most policymakers are expecting the
plan to help a smaller subset of immigrants. Rep. Luis Gutierrez (D-IL), the
biggest Congressional advocate for executive action on immigration, has said that "three, four, maybe even five million"
immigrants could be protected if and when President Obama acts.
Immigration activists say that the
Department of Homeland Security's recommendations to the White House might
protect fewer people than that — one advocate told Buzzfeed that the number included would be in the
"low seven figures," while another said "three million."
It all depends on who exactly is included in the new
program, which no one knows for sure at this point.
Which
types of immigrants could be covered?
The president's ability to protect
unauthorized immigrants from deportation is supposed to be limited to
particularly worthy cases. When the Obama administration instituted the DACA
program in 2012, they justified it by saying that they were limiting the
program to a particular group of immigrants — and then using the application
process to evaluate individual cases.
Similarly, for this round of immigration
relief, the administration will probably carve out one or more groups of
unauthorized immigrants who will be eligible to apply, and then set an
additional set of criteria that individuals in those groups will have to meet
to get their applications approved. Here are some possible groups that could be
eligible under a new program:
Unauthorized immigrants who are married to
US citizens or green-card holders. There are 1.5 million unauthorized immigrants in the US whose
spouses have US citizenship, or at least a green card. These immigrants should
be eligible for legal status themselves, but are blocked by rules that make it
extremely difficult to get legal status in the US if you've ever been
unauthorized — especially if you're not willing to risk leaving the US in the
hopes that you might get to come back.
Unauthorized immigrants whose children are
US citizens. There
are 3.8 million unauthorized immigrants with US-citizen
children (in most cases because their kids were born in the US). These
immigrants can't get legal status until their children turn 21 — and would then
have to deal with the same rules that make it so tough for unauthorized
immigrants in the US to get legal status.
Other unauthorized immigrants with
children. The Obama administration
has said that immigration enforcement shouldn't split up families, and
advocates believe that the only way to guarantee that is to protect parents
from deportation. There are 900,000 unauthorized immigrants whose children are
not citizens, but are under 18. The administration could also protect the
parents of DACA recipients, which could cover several hundred thousand more
unauthorized immigrants. According to Buzzfeed, advocates aren't sure whether the Department of
Homeland Security is including parents of DACA recipients in its
recommendations for relief.
Farmworkers. Historically, legalizing unauthorized
farmworkers has been more popular with Congress than legalizing other
unauthorized workers — a bill called "AgJOBS," to grant legal status
to farmworkers, has been floating around Congress as long as the DREAM
Act. In an op-ed published in Univision, Democratic members of Congress, including
Minority Leader Nancy Pelosi, argued that Obama "could recognize that it
is 'essential for agriculture' that farmworkers who toil in our fields do so
without fear" as part of his executive action.
What
other requirements would an immigrant have to meet?
Immigrants won't automatically qualify for
legal status if they fit one of these categories. There are other criteria to
consider as well. To qualify for DACA, for example, an immigrant has to
meet a set of criteria regarding age, education, criminal record, and time in the
United States. Not all of those will matter for other groups of immigrants (age
requirements will likely be dropped) but others will.
In particular, the administration is
expected to require applicants to have been in the US for a certain number of
years before they're eligible for relief. The DACA program required immigrants
to have been in the US since at least 2007 — five years before the program went
into effect. The new policy similarly could say that immigrants have to have
lived in the US for at least five years — or it could say they have to have
lived in the US for at least ten years, or some other number.
Advocates are very worried that if the administration
limits the program to immigrants who have lived in the US since 2004, will
disqualify millions of people, enough to seriously blunt the impact of the
program. While most unauthorized immigrants have lived in the US for over a decade,
some are newer arrivals — or have left the US and returned at some point in the
last ten years. Furthermore, it's going to be extremely hard for immigrants to
prove when they entered the country without papers.
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