The most impactful component of President Obama’s Immigration Accountability Executive Action will be the creation of a new program designed to offer deportation reprieves and work authorization to undocumented parents of U.S. citizens and green card holders who pass a background check and meet other requirements. Here are five things you need to know about this new program, which USCIS calls Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
- It’s lawful. The DAPA program was carefully vetted by lawyers with the Department of Justice’s Office of Legal Counsel (OLC), which provides authoritative legal advice to the President and all the Executive Branch agencies. The OLC opinion explains that Congress has given immigration officials wide latitude in enforcing the immigration laws—latitude that the Supreme Court recently recognized in Arizona v. United States, the case against Arizona’s harsh immigration law, SB 1070. In that case, the court stated that “the broad discretion exercised by immigration officials” is a “principal feature of the removal system.” Moreover, as we have previously explained, there is ample historical precedent for executive branch action on immigration matters. Since 1956, in at least 39 instances, presidents of both political parties have acted to protect families from separation and in response to foreign policy crises.
- It’ll impact approximately 4 million people. The Migration Policy Institute estimates that as many as 3.7 million undocumented immigrants potentially qualify for DAPA. If a significant number of eligible individuals apply, it’ll mean that millions of U.S. citizen kids will finally be able to go to school without fearing that their mothers and fathers will be gone when they get home.
- Not all parents of U.S. citizens and Lawful Permanent Residents (green card holders) will qualify. Individuals will have to meet several requirements to fit within the class of people eligible for DAPA. In addition to having a U.S. citizen or green-card holding child, individuals will have to demonstrate that they have lived in the United States since before January 1, 2010. The program is only available to individuals who were physically present in the United States on November 20, 2014 and who had no lawful status on that date. Finally, if a person falls within the new DHS enforcement priorities––a list that includes people suspected of terrorism, gang associations, certain immigration law violators, and individuals convicted of a wide array of crimes––then that person won’t qualify for the program.
- The application period has not begun. USCIS is scheduled to begin accepting DAPA applications around May 19, 2015. The filing fee will be $465, which will cover adjudication costs and a required background check. The DAPA application form has not yet been unveiled. Potentially eligible individuals may want to begin preparing for the application period by learning more about the program, saving up for the application fee, and gathering documents like passports or other identification, kids’ birth certificates, and records showing residence in the U.S. since before January 1, 2010 up to the present. Individuals who are approved will receive deferred action and work authorization for a period of three years. Even though the application period has not begun, DHS has been instructed not to detain or deport eligible individuals.
- There are lots of open questions. Some individuals will clearly be good candidates for DAPA while others won’t. But there are plenty of grey areas. For example, will the agency consider the adoptive or step-parents of U.S. citizens and green-card holders to be eligible? How much evidence will be required to demonstrate that a person continuously resided in the United States since before January 1, 2010? Even more fundamentally, how will continuous residence be defined? These are some of the many policy questions the agency will have to grapple with between now and the initiation of the application period.
Photo by Connie Ma.