On January 20, 2015, President Obama addressed the nation in the annual State of the Union address. Among the many topics that the president touched upon in his speech was immigration. After more sweeping immigration reform bills died in the U.S. House of Representatives last year, the president vowed to use his executive authority to fix elements of the broken immigration system. In November of 2014, after the mid-term elections gave control of both houses of Congress to the Republicans, the president announced he would issue executive orders addressing immigration issues, including the undocumented immigrant population and the business immigration system. One of the first bills passed by the House in 2015 included provisions that would defund those executive actions. While the Republican-controlled Senate plans to try to pass the House bill in order to move it to the president’s desk, its prospects for overcoming the 60-vote threshold necessary to cut off debate seem slim.
In the State of the Union the president appeared to fight back against this attack on his executive actions, saying he would veto bills aimed at “refighting past battles on immigration when we’ve got a system to fix.” In his speech the president acknowledged that immigration was a contentious topic, but said that “surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is taken from her child, and that it’s possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.”
One of the main executive actions announced by the president in November of 2014 was the Deferred Action for Parental Accountability (DAPA) program. DAPA would temporarily defer the deportation of undocumented immigrants present in the United States since 2010 who are the parents of U.S. citizens or lawful permanent residents. It is estimated that approximately five million undocumented immigrants may benefit from DAPA’s provisions. Beneficiaries would receive temporary work authorization and represent a workforce primarily comprising occupations in the fields of agriculture; building, grounds keeping, and maintenance; construction; and food preparation and serving.
Other executive actions are intended to address the higher-skilled immigration system, including changes that will benefit foreign entrepreneurs by expanding eligibility for national interest waiver visa petitions. Inventors, researchers, and founders of start-ups who create jobs and attract investment would benefit from grants of “parole,” allowing them to work in the U.S. when other visa options are unavailable. Foreign students pursuing degrees in science, technology, engineering, and mathematics (STEM) fields would be offered expanded work opportunities through optional practical training. Other technical fixes include reducing green card backlogs through the more efficient use of visas and bringing more consistency to the adjudication of international transferee (L-1) visas.
The president’s executive actions are necessarily limited due to the restrictions on presidential power. Comprehensive and permanent reform must still come from Congress. However, one of the other overarching messages in the president’s State of the Union address is that cooperation may still be possible. A sign of hope may come from a bipartisan bill introduced in the Senate last week, the I-Squared Act. The bill would increase temporary work visas and green cards for highly-skilled immigrants and students with STEM degrees, while improving the immigration system for employers in the tech sector and other industries that depend on highly-qualified foreign workers.
Ogletree Deakins will continue to monitor developments in legislation and executive action related to immigration law and to provide more information as it becomes available.
Maria Fernanda Gandarez is a shareholder in the New York office of Ogletree Deakins.
Matthew Kolodziej is a staff attorney in the New York office of Ogletree Deakins.
Lowell Sachs is a practice support manager and is based in the Raleigh office of Ogletree Deakins.