Immigration – the word evokes passionate emotions from left, right and centrist Americans. Over the past 20 years, North Carolina’s immigrant population growth has been among the highest in the nation. North Carolina attracts a variety of immigrants because of the convergence of agricultural, business and educational needs throughout the state. Foreign nationals have made contributions to our international business enterprises as well as our internationally recognized research institutions.
North Carolina benefits from foreign nationals with strong work ethics, drive and initiative who have come to build their lives here. They marry, have children, buy houses and purchase goods and services. Contrary to some views, most foreign nationals are taxpayers who file tax returns. The current immigration system reflects mid-20th century goals and priorities that have not kept pace with the demands of our global society. Consequently, many foreign nationals living in our midst or seeking to come here are shut out from securing legal status or ever bringing their talents and investments to this country.
2014 Policy Changes Nov. 20, 2014, President Obama announced a package of immigration enforcement policy changes referred to as the Immigration Accountability Executive Action.
The initiatives announced by the president include: • Additional border security measures. • A new Priority Enforcement Program (PEP). • Expanding the provisional waiver program (I-601A waiver) to include spouses and minor children of lawful permanent residents and sons and daughter of United States citizens. • Adjustments to procedural problems in employment visa system to reduce backlogs. • Increasing access to needed foreign workers and entrepreneurs who will create new jobs in the United States. • Directives to streamline immigration court proceedings. • Changes to worksite enforcement. • Enhancements to victims of crimes and trafficking (U and T classification). • Authorizing employment for spouses of temporary professional workers.
Deferrals not Green Cards The most controversial of President Obama’s initiatives are expanding the 2012 program granting Deferred Action to Childhood Arrivals (DACA) and the creation of a new program granting Deferred Action for Parental Accountability (DAPA). The programs are temporary; qualified individuals are granted relief from removal (deportation) for a period of three years, and they are eligible to receive work authorization for that three-year period. It is important to understand that these deferrals are not permanent and do not lead to green cards or U.S. citizenship. It is not an amnesty. These initiatives are being created for enforcement prioritization. They may be withdrawn at any time, and they lack the procedural protections associated with a permanent or temporary visa status.
The executive action announced by President Obama is a directive for the use of prosecutorial discretion to prioritize the removal of persons unlawfully in the United States. As President Obama stated in his announcement, the emphasis of our immigration policy must be “to remove felons not families.” It is absolutely within the powers of the executive branch to direct law enforcement to manage its limited resources to remove those persons who are most harmful to our country and to defer the removal of otherwise law-abiding noncitizens living in the United States.
Despite concerns that President Obama exceeded his authority in directing federal law enforcement to defer the removal of certain non-citizens, there is both historical precedent for these initiatives and fiscally-sound reasoning to support these actions. Thus far, there has not been a successful constitutional challenge to President Obama’s executive order. Since the enactment of the Immigration and Nationality Act in 1952, presidents, as the head of the executive branch, have routinely exercised their discretion in both systematic and case-by-case methods to grant immigration relief to certain non-citizens for humanitarian, foreign policy or national security concerns.
Humanitarian Enforcement This executive order addresses the reality that the last several administrations have been unable to enforce existing immigration laws. It sets out a way to prioritize enforcement of existing laws in a humanitarian manner, while including some pragmatic regulatory fixes to arcane processes. It also places conditions on those undocumented non-citizens who will be temporarily protected from removal to pass criminal background checks and pay taxes. The order does not provide a means for a foreign national to avoid removal forever, but it provides the government with a means to know who is here while the government concentrates on the individuals who, for our safety, need to be removed from the country first.
The Immigration Accountability Executive Action is not a panacea to substitute for much needed legislative reforms. It is also not a cure-all for noncitizens and their families. Not everyone unlawfully present in this country will be covered by President Obama’s initiatives. These initiatives are not stand alone programs; they must be read in the context of existing U.S. immigration law, policy and procedure. It is for this reason the legal community must be vigilant in protecting this vulnerable population from exploitation. Cynthia Aziz