The President’s Immigration Accountability Executive Action of November 20, 2014: Overview and Issues 
Released: 2015-02-24T00:00:00

Current Developments

On February 23, 2015, Senator Susan Collins introduced S. 534 , the Immigration Rule of Law Act of 2015, which would prohibit funding for almost all of the President's Immigration Accountability Executive Action announced on November 20, 2014. The legislation cites 11 of the 12 memoranda issued pursuant to the executive action, including 9 memoranda issued by the Secretary of Homeland Security, and both memoranda issued by the President. The legislation would prohibit any funds or fees, including deposits into the Immigration Examinations Fee Account, from being used to grant any federal benefits pursuant to any policy changes established in the cited memoranda. In addition, the bill would require the Department of Homeland Security (DHS) to treat as within its highest enforcement priority for removal any alien convicted of domestic violence, sexual abuse, child molestation, or child exploitation. The bill would express the sense of Congress on policies that it finds as imposing disadvantages on the hiring of U.S. citizens and lawfully present aliens. It would also express the sense of Congress on policies that disadvantage the immigration processing of lawfully present aliens in favor of that for unauthorized aliens.

Introduction

President Obama's Immigration Accountability Executive Action of November 20, 2014, would revise some U.S. immigration policies and initiates several programs, including a revised border security policy for the Southwest border; deferred action programs for some unauthorized aliens; revised interior enforcement priorities; changes to aid the entry of skilled workers; promoting immigrant integration and naturalization; and several other initiatives the President indicated would improve the U.S. immigration system. The most controversial among these would grant deferred action to as many as 5 million unauthorized aliens. The President announced the executive action through 10 Department of Homeland Security (DHS) memoranda, 2 White House memoranda, and 3 Department of Labor (DOL) fact sheets.

According to the President, the action was taken in response to the absence of legislation addressing major problems within the immigration system. The President has stated that his executive action is temporary, and that his successor can rescind some or all of its provisions. Those opposed to the executive action argue that it was taken largely for political purposes. They contend that once granted, the temporary measures it encompasses would be difficult to revoke. Separately, a debate has arisen as to whether the President has the legal authority to take such action, with the Administration and others arguing the President's action falls within his authority, and many in Congress arguing the President has overstepped it. That debate and its attendant legal questions are beyond the scope of this report. As the Administration proceeds to implement the executive action, some in Congress have vowed to halt some or all of its provisions.

Overview of Major U.S. Immigration Policy Issues

Policymakers and immigration observers widely agree that the U.S. immigration system is "broken," but they disagree on measures to fix it. Underlying these different views are broader and more fundamental debates about how many temporary and permanent immigrants should be admitted into the United States, how those immigrants should be selected for admission (e.g., needed skills, relationship to U.S. residents), and the funding levels and appropriate mix of immigration enforcement measures, among other issues.

Long-standing immigration-related challenges include an estimated population of over 10 million unauthorized individuals, a large portion of whom have lived in the country for over a decade and have U.S. citizen and lawful permanent resident (LPR) children; increasing competition among more advanced nations for the "best and brightest" workers, including U.S. educated science, technology, engineering, and mathematics (STEM) graduates; a queue of 4.4 million individuals whose petitions for lawful permanent resident (LPR) status have been approved and who must wait, in some cases decades, for a numerically limited visa to immigrate; and ongoing border security and interior enforcement challenges.

Broad Elements of Immigration Reform

For several years, some Members of Congress have favored "comprehensive immigration reform" (CIR), a label that commonly refers to omnibus legislation that includes increased border security and immigration enforcement, expanded employment eligibility verification, revision of nonimmigrant visas and legal permanent immigration, and legalization for some unauthorized aliens residing in the country. The omnibus legislative approach contrasts with incremental revisions of the Immigration and Nationality Act (INA) and other immigration laws that would address some but not all of these elements, and with sequential reforms that would tackle border security and interior enforcement provisions prior to revising legal immigration or enacting legalization pathways for the unauthorized population residing in the United States.

In 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act ( S. 744 ), a comprehensive immigration reform bill. S. 744 contained provisions that, among other things, would have increased border security and interior enforcement, expanded employment eligibility verification and worksite enforcement, offered a conditional path to legal status for many unauthorized aliens, reformed permanent immigrant and temporary nonimmigrant visas, and revised humanitarian admissions. The House took a different approach to immigration reform. Rather than consider a single comprehensive bill, the House acted on separate bills that, among other provisions, would have increased border security and interior enforcement, expanded employment eligibility verification and worksite enforcement, and substantially revised nonimmigrant and immigrant visas.

Summary of the President's Executive Action

The President's "Immigration Accountability Executive Action," announced on November 20, 2014, includes initiatives covering the following policy areas:

border security; interior enforcement and removals; Deferred A cti on for Childhood A rrivals (DACA);Deferred Action for P arents of Americans and Lawful Permanent Residents (DAPA);p arole;provisional unlawful presence w aivers; high-skilled foreign w orkers ; immigrant integration and n aturalization ; immigrant visa s ystem; l abor protection; andcrime v ictims.

This report reviews each component of the President's executive action based on currently available information. The report is broken out by broad policy areas. Each section begins with a discussion of the context of existing policy, describes the related executive action, and summarizes how the action would address current immigration policy challenges.

Border Security

Security along U.S. borders has been an ongoing subject of congressional interest since the 1970s, when illegal immigration emerged as a serious national problem. The terrorist attacks of September 11, 2001 (9/11), spurred concerns about border security, a core part of DHS's effort to control unauthorized migration. The United States Border Patrol (USBP, Border Patrol) spearheads this effort as the lead agency along most of the borders. The USBP focuses on the regions between ports of entry (POEs).

In addition to Border Patrol agents, other law enforcement personnel work in U.S. border regions. These include Customs and Border Protection (CBP) officers at POEs; Immigration and Customs Enforcement (ICE) agents; U.S. Coast Guard (USCG) personnel; additional federal law enforcement officers from agencies such as the Drug Enforcement Administration, U.S. Marshals Service, and Department of Agriculture; state and local police; and on occasion, the National Guard. Complementing this array of personnel are CBP's land-based surveillance assets, air and marine surveillance assets, and fencing and physical infrastructure.

USBP has experienced large-scale growth since 2004, and DHS Secretary Johnson and the Obama Administration have argued that the Southwest border is more secure than ever. Yet, some Members of Congress and others have called on the Administration to do more to secure the border. Border security has been a recurrent theme in Congress's debate about comprehensive immigration reform since 2005, and some Members have argued that Congress should not consider additional immigration reforms until the border is more secure.

USBP is responsible for enforcing U.S. immigration law and other federal laws along the border and for preventing all unlawful entries into the United States, including entries of terrorists, unauthorized aliens, weapons of mass destruction, illicit narcotics, and other contraband. In discharging its duties, USBP patrols roughly 7,500 miles of U.S. international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico.

Along the border, USBP's staffing has grown from 9,511 in FY2004 to 18,611 in FY2013, with a slight dip to 18,127 in FY2014 ( Figure 1 ). At the same time, apprehensions at the Southwest border have declined with an uptick in recent years partly due to a rise in the number of unaccompanied children crossing illegally. It is unclear how the expansion in USBP personnel has influenced unlawful migration, but the Obama Administration and DHS Secretary Johnson have touted these two numbers as indicative of improved security along the Southwest border.

In recent years, CBP and USBP have developed border security plans. In May 2012, CBP released the most recent iteration, the "2012-2016 Border Patrol Strategic Plan." It shifts attention from resource acquisition and deployment to the strategic allocation of resources by "focusing enhanced capabilities against the highest threats and rapidly responding along the border." From an operational perspective, this plan emphasizes the collection and analysis of information about evolving border threats; integration of Border Patrol and CBP planning across different border sectors and among the full range of federal, state, local, tribal, and international organizations involved in border security; and rapid Border Patrol response to specific border threats.

Coordinating Border Security

In one project to enhance the coordination of complex border security and inspection efforts, CBP developed the Arizona Joint Field Command (JFC). The JFC emerged in 2011 as "an organizational realignment" bringing together the Border Patrol with CBP's other key components, "under a unified command structure to integrate CBP's border security, commercial enforcement, and trade facilitation missions to more effectively meet the unique challenges faced in the Arizona area of operations." The JFC includes more than 6,700 CBP employees and covers the entire state of Arizona and parts of California.

DHS has announced coordination measures that appear to go much further than the JFC. Secretary Johnson first revealed the development of such border-security plans in May 2014. In written congressional testimony he describes a "Southern Border and Approaches Campaign" planning effort devised to create

a strategic framework to further enhance security of our Southern border. Plan development will be guided by specific outcomes and quantifiable targets for border security, approved by me, and will address improved information sharing, continued enhancement and integration of sensors, and unified command and control structures as appropriate. The overall planning effort will also include a subset of campaign plans focused on addressing challenges within specific geographic areas.

Discussion

On November 20, 2014, DHS Secretary Johnson expanded on the campaign by "commissioning" three Joint Task Forces. Unlike the Arizona JFC, which brings together elements within CBP, the three Joint Task Forces would bring together personnel from CBP as well as other DHS agencies—the U.S. Coast Guard, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services (USCIS). The Joint Task Forces would also "integrate capabilities of the remaining [DHS] components as needed." According to Secretary Johnson, "two of these task forces will be geographically based and one will be functionally focused." Joint Task Force East would cover "the Southern maritime border and approaches." Joint Task Force West would have responsibility for the southern land border and the West Coast, while an entity dubbed Joint Task Force Investigations "will focus on investigations in support of the geographic Task Forces." The memo lays out broad missions and objectives and sets a 90 day timeframe to "realign personnel and stand up headquarters capabilities within each Joint Task Force."

Thus far, more details about the Joint Task Forces are scarce, and several key questions loom:

Would DHS alter its command and control structures—as well as those of its component agencies—to accommodate these new bodies? What authority would each Joint Task Force leader have over Task Force personnel, immediate priorities, and budgets? Would such authority supersede the authority of component leadership in DHS? What metrics would be used to assess the effectiveness of the Joint Task Forces? How would jurisdictional disputes between Joint Task Forces and issues related to competing mission priorities be settled?

Enforcement Priorities, Secure Communities, and Pay Reform

Since its enactment in 1952, the Immigration and Nationality Act has given the Attorney General and more recently the DHS Secretary discretion to exercise the power to remove foreign nationals. Since at least 1975, a series of policy memorandums published by the former Immigration and Naturalization Service (INS) and DHS has provided guidance to immigration officers who institute removal proceedings against an alien. The guidance noted which categories of foreign nationals to prioritize for removal (i.e., prosecutorial discretion).

ICE Enforcement and Removal Operations (ERO) is chiefly responsible for locating removable aliens, managing custody of aliens undergoing removal procedures, and ensuring that aliens directed to depart from the United States do so (either by witnessing their removals or by physically removing the aliens). In addition, certain other DHS personnel may initiate a removal process against an alien.

On November 20, 2014, the DHS Secretary announced new department-wide policies for enforcement priorities and the apprehension, detention, and removal of aliens. This guidance is effective on January 5, 2015. In addition, Secretary Johnson announced a review and steps to overhaul the pay scale for immigration officers in ERO.

Enforcement Priorities

Secretary Johnson wrote in the November 20, 2014, memorandum on enforcement priorities:

Due to limited resources, DHS and its components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion, DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities.

The memorandum states that prosecutorial discretion should apply to initiating or suspending a removal proceeding as well as other enforcement decisions, such as deciding who to stop, question, arrest and detain; whether to continue to pursue a removal case; and whether to grant deferred action, parole, or a stay of removal. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, the policy states it is preferable to do so as early as possible to conserve government resources.

The memorandum lays out the following enforcement priorities:

(Highest) Priority 1: threats to na tional security, border security, and public safety aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a threat to national security; aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States; aliens convicted of an offense that involves participating in a criminal street gang, or aliens who are 16 years or older who intentionally participated in an organized criminal gang to further illegal activity of the gang; and aliens convicted of felonies. Priority 2: misdemeanants and new immigration violators aliens convicted of three or more misdemeanors or a "significant misdemeanor;" aliens who are unlawfully present and were not physically present before January 1, 2014; and aliens who have significantly abused the "visa or visa waiver programs" (i.e., terms of admittance). Priority 3: aliens issued final orders of removal after December 31, 2013.

According to the memorandum, unless certain circumstances are met, aliens described in Priority 1 must be prioritized for removal, those in Priority 2 should be removed, and those in Priority 3 should generally be removed.

The President's executive action issued on November 20, 2014, revised enforcement priorities and rescinded and superseded related policies issued in 2011 and 2012 by then-ICE Director John Morton. The previous priority levels were (1) aliens who pose a danger to national security or a risk to public safety; (2) recent entrants; and (3) aliens with final orders of removal (i.e., fugitives or absconders) or who otherwise obstruct immigration controls. The most substantive change in enforcement priorities between the newly issued policy and policies from earlier years is that an alien who was issued a final order of removal prior to 2014 is no longer an enforcement priority, provided he or she is neither a criminal nor a national security concern. Other changes include increasing the priority level of aliens apprehended at or between ports of entry while attempting to illegally enter the country, and providing more specificity on the types of misdemeanor offenses that make an alien a focus for removal.

Detention Priorities

As with the previous Morton policy memorandum on detention and removal priorities, the November 20, 2014, memorandum on enforcement priorities specifies that as a general rule, detention resources should be used to support enforcement priorities noted above or for aliens subject to mandatory detention under the law. In keeping with earlier policy, the memorandum also states that, absent extraordinary circumstances or the statutory requirement of mandatory detention, ICE should not detain aliens who are

known to be suffering from serious physical or mental illness; disabled, elderly, pregnant, or nursing; primary caretakers of children or infirm persons; or not in the public interest to detain.

Removal Statistics

ICE and the Office of Immigration Statistics (OIS) both report removal statistics, but immigration observers have raised questions about their accuracy. In addition, removal statistics are used to evaluate DHS's adherence to stated policies on enforcement priorities. Through the executive action, DHS Secretary Johnson directed OIS, with the cooperation of CBP, ICE, and USCIS, to create the capability to collect and maintain data reflecting the numbers of those apprehended, removed, returned, or otherwise repatriated by any component of DHS. He further directed that these statistics be made publically available on an annual basis.

Secure Communities/Interoperability

Secure Communities was the original name given to an information sharing program that uses biometric data to screen for removable aliens as people are being booked into jails. The program began in late 2008 in about a dozen jurisdictions and since FY2013 has been operational in all state and local law enforcement jurisdictions in the country. As early as 2011, DHS began referring to this program as interoperability between local law enforcement, the Federal Bureau of Investigation (FBI), and DHS.

Secure Communities/interoperability is not an enforcement unit. When law enforcement agencies book (take custody of) someone and submit the person's fingerprints to the FBI for criminal background checks, the fingerprints are also automatically checked against DHS's Automated Biometric Identification System (IDENT) database. If the person is matched to an immigration record in IDENT, ICE is notified and determines whether any action is necessary or appropriate based on the agency's enforcement priorities. Aliens identified for removal are placed in removal proceedings by ICE agents, typically from the Criminal Alien program (CAP).

As part of the President's executive action, Secretary Johnson directed ICE to discontinue Secure Communities. However, the data interoperability between DOJ and DHS created under the name Secure Communities would not be discontinued. Instead, the program would be renamed and enforcement priorities changed for those identified as possibly removable aliens through the interoperability process. Consistent with the policy memorandum on enforcement priorities, the policy memorandum on Secure Communities specifies that ICE should only seek a transfer for an alien in state or local custody if he or she has been convicted of a Priority 1 offense or of multiple or significant misdemeanors. Under the revised priorities, unless aliens pose a demonstrable risk to national security, enforcement actions would only be taken against those convicted of specifically enumerated crimes. The new program would be called the Priority Enforcement Program (PEP).

The Secure Communities memorandum also addresses the issue of "immigration detainers." These are documents in which ICE advises law enforcement agencies of its interest in individuals whom these agencies are detaining, and to take actions (such as holding the alien temporarily) to facilitate their removal. The increased use of immigration detainers under Secure Communities has raised legal questions regarding their use. Under the revised policy, ICE would replace requests for detention with requests for notification (i.e., that state or local law enforcement notify ICE of an alien's pending release from custody). Under special circumstances, a detention request may be issued if the person is subject to a final order of removal or if sufficient probable cause exists to find the person removable.

Some contend that the Secure Communities program has led to unfair treatment of selected individuals (e.g., a person is arrested rather than just given a warning or ticket because of his or her perceived immigration status) as well as some improper arrests and unlawful detention (e.g., a person is arrested on a false change because he or she is perceived to be unlawfully present). In the Secure Communities memorandum of November 20, 2014, the DHS Secretary directs the Office of Civil Rights and Civil Liberties to develop and implement a plan to monitor state and local law enforcement agencies participating in the transfer of foreign nationals to ICE.

Personnel Reform

As part of the President's executive action, DHS also announced a recalibration of the workforce and pay structure for ICE Enforcement and Removal Operations (ERO) personnel. The related memorandum directs ERO and the DHS Office of the Chief Human Capital Officer to review the job series and premium pay coverage for ERO officers and determine any changes that may be required. The Administration would then pursue and prioritize regulations and legislation necessary to achieve the desired changes. According to the Administration, ERO's enforcement strategy and initiatives have shifted toward investigations, identification, location, arrest, prosecution, and removal of criminal aliens and other aliens who pose risks to national security. However, ERO's personnel structure lags behind other law enforcement agencies and other components of ICE, harming morale and presenting management challenges. Some observers contend that personnel issues related to pay structure have existed for years at ERO, and that the reforms within the President's executive action were timed for political purposes.

Discussion

Since 2002, DHS has made concerted efforts to locate and remove absconders. The President's executive action of November 20, 2014, would no longer make such aliens enforcement priorities if they were issued final orders of removal prior to 2014 and are neither criminals nor national security concerns. At the start of FY2014, ICE reported a backlog of 469,151 fugitive aliens who had not been apprehended. The Administration stated it is undertaking this policy to allow DHS to focus its limited resources on higher enforcement priorities. It is not known, however, how many fugitive aliens would qualify for the President's deferred action initiatives, but some overlap between the two programs can be expected. Time would be required to measure the impact of the new enforcement priorities on the types of aliens who are located and removed.

In addition, until implemented it remains unclear exactly what the effect of the new PEP program would be, compared to the former and in some ways comparable Secure Communities program it replaced. The enforcement priorities memorandum of November 20, 2014, suggests that ICE would issue fewer detainers with state and local law enforcement, focusing only on higher priority cases. It is also unclear how well the new requests for notification would effectuate the transfer of aliens to ICE custody, since not all jurisdictions currently accept ICE requests for detention.

Deferred Action, Parole, and Provisional Inadmissibility Waivers

How to address the unauthorized alien population in the United States has arguably been the most divisive issue in recent discussions about immigration reform. Proposals to enable unauthorized aliens to become U.S. lawful permanent residents (LPRs) have been key flash points in the congressional debate. Various legalization proposals have been introduced in recent Congresses, but none have been enacted. One key difference among these proposals has been their scope. Some bills have been targeted at particular segments of the unauthorized population. For example, legislation known as the Development, Relief, and Education for Alien Minors (DREAM) Act has proposed to enable certain unauthorized aliens who arrived in the United States as children to obtain LPR status through a two-stage process. Other more controversial measures, such as the major Senate immigration reform bill considered in the 113 th Congress, have aimed to provide LPR status more broadly.

While only legislative action can bestow legal immigration status, the Obama Administration has used other mechanisms to enable unauthorized aliens to remain in the United States. The Administration has also taken steps to address the impact of provisions in the Immigration and Nationality Act (INA) that make aliens who have been unlawfully present in the United States for more than 180 days and then depart, inadmissible to the country for a specified period of time. These provisions are known as the 3- and 10-year bars. Through the President's executive action of November 20, 2014, the Obama Administration would be providing eligibility for two forms of temporary immigration relief—deferred action and parole—for certain segments of the unauthorized population, and would expand the availability of certain types of waivers of the unlawful presence grounds of inadmissibility in the INA.

Deferred Action

DHS defines deferred action as "a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion." In 2012, in the absence of congressional action on DREAM Act legislation, DHS issued a memorandum announcing that certain unauthorized individuals who were brought to the United States as children and meet other criteria would be considered on a case-by-case basis for deferred action for two years, subject to renewal. The eligibility criteria established for this initiative, known as deferred action for childhood arrivals, or DACA, were similar to those for relief in DREAM Act bills. Among the DACA criteria were (1) being under age 16 at time of entry into the United States; (2) residing continuously in the United States since June 15, 2007; and (3) being below age 31 on June 15, 2012. The DACA initiative is administered by DHS's U.S. Citizenship and Immigration Services (USCIS). Aliens apply for employment authorization at the same time that they submit their applications for consideration of DACA.

On November 20, 2014, DHS Secretary Johnson announced an expansion of the original DACA initiative and the establishment of another DACA-like process to exercise prosecutorial discretion for another subgroup of unauthorized aliens in the United States.

Expansion of Eligibility for DACA

The 2014 DHS memorandum on prosecutorial discretion directs USCIS to make specified changes to the DACA initiative that expand the pool of potential beneficiaries, as follows:

elimination of the "below age 31 on June 15, 2012" requirement; advancement of the required starting date of continuous residence from June 15, 2007, to January 1, 2010; and extension of the initial grant and renewal periods for DACA and accompanying employment authorization from two to three years.

In the memorandum, DHS directs USCIS to begin accepting applications under the expanded DACA parameters in 90 days.

Establishment of the New Deferred Action Process

In the memorandum, the DHS Secretary further directs USCIS to establish a DACA-like process for exercising prosecutorial discretion toward another group of unauthorized individuals—parents of U.S. citizens or LPRs—who meet specified criteria. In addition to not having a lawful immigration status on November 20, 2014, a potential beneficiary must:

be the parent of a U.S. citizen or LPR; have resided continuously in the United States since before January 1, 2010; be physically present in the United States on November 20, 2014, and at the time of making a request for consideration of deferred action with USCIS; not be an enforcement priority; and not present any other factors that make the grant of deferred action inappropriate.

The memorandum specifies that, as under DACA, applicants would apply for employment authorization at the same time that they submit their applications for consideration of deferred action. Grants of deferred action and accompanying work authorization under this process would be valid for a three-year period. In the memorandum, the DHS Secretary directs USCIS to begin accepting applications under the new deferred action process within 180 days.

Deferred action is also addressed in another DHS memorandum where the DHS Secretary directs USCIS to consider granting deferred action to unauthorized family members of U.S. military servicemembers and veterans who are not eligible for parole-in-place (see " Parole ").

Parole

The INA authorizes the DHS Secretary to "parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission into the United States." Parole does not constitute formal admission to the United States; an individual granted parole is still considered an applicant for admission. Although parole is used most often to allow an alien who is outside the United States to enter the country, it also has been granted to unauthorized aliens who are physically present in the United States but who have never been lawfully admitted. Parole granted to those present in the United States is known as parole-in-place . Another procedure, advance parole , may be authorized by USCIS to enable an alien in the United States to travel abroad and, upon return, be considered for parole.

Expansion of Use of Parole-in-Place for Military Families

Ongoing DHS policy makes certain family members of U.S military servicemembers and veterans eligible for parole-in-place. Covered family members are spouses, children, and parents of active duty members—and former members—of the U.S. Armed Forces and the Selected Reserve of the Ready Reserve. In his November 20, 2014, memorandum, the DHS Secretary reported that the Department of Defense (DOD) has requested that DHS expand the application of its military parole-in-place policy to cover family members of U.S. citizens and LPRs who seek to enlist in the U.S. Armed Forces. In the memorandum, the Secretary directed USCIS to issue new policies on the use of parole-in-place for certain spouses, children, and parents of U.S. citizens and LPRs seeking to enlist.

Advance Parole

The November 20, 2014, DHS memorandum Directive to Provide Consistency Regarding Advance Parole addresses a Board of Immigration Appeals (BIA) decision concerning advance parole and one of the grounds of inadmissibility in the INA related to unlawful presence. In the Matter of Arrabally , the BIA decided that "individuals who travel abroad after a grant of advance parole do not effectuate a 'departure ... from the United States' within the meaning of [INA] section 212(a)(9)(B)(i)." Under INA Section 212(a)(9)(B)(i)(1), an alien who has been unlawfully present in the United States for more than 180 days but less than 1 year, voluntarily departs, and seeks admission within three years is inadmissible (3-year bar); and under INA Section 212(a)(9)(B)(i) (2), an alien who has been unlawfully present in the United States for 1 year or more and seeks admission within 10 years of such alien's departure or removal date is inadmissible (10-year bar). If, in accordance with the Arabally decision, travel on advance parole does not constitute a departure, then the 3- and 10-year bars on admissibility would not be triggered in such cases. In the DHS memorandum, the DHS Secretary provides notice that he has asked the DHS General Counsel to issue legal guidance clarifying that "in all cases when an individual physically leaves the United States pursuant to a grant of advance parole, that individual shall not have made a 'departure' within the meaning of section 212(a)(9)(B)(i) of the INA."

Provisional Unlawful Presence Waivers

The INA provides for specified family members of U.S. citizens or LPRs and specified categories of workers to be admitted to the United States for permanent residence as LPRs. The process of becoming an LPR through either the family-based or employment-based route has multiple steps. In most cases, the sponsoring family member or employer must file an immigrant visa petition on behalf of the alien with USCIS. Among the general requirements for obtaining a visa or gaining lawful admission to the United States is that an individual must be admissible to the country. In other words, the individual cannot be inadmissible under the enumerated grounds of inadmissibility in the INA (see " Advance Parole "). Some grounds of inadmissibility are subject to exceptions and waivers.

Unauthorized aliens in the United States with approved immigrant visa petitions may face difficulties in obtaining LPR status. The process of becoming an LPR from within the United States is known as adjustment of status . The main adjustment of status provision in the INA applies to aliens who have been inspected and admitted, or paroled, into the United States or who qualify for classification under the Violence Against Women Act (VAWA) and who meet other specified requirements. These requirements include that (1) the alien is the beneficiary of an approved immigrant visa petition; (2) an immigrant visa is immediately available; and (3) the alien is admissible to the United States. Except for VAWA cases, unauthorized aliens who entered the United States without inspection are ineligible to adjust to LPR status under the main INA adjustment of status provision. Unauthorized aliens who initially were admitted or paroled into the country are generally ineligible to adjust status unless they qualify for an exception.

The alternative to adjusting status in the United States is for the alien to travel to his or her home country to apply for a visa at a U.S. embassy or consulate once a visa number becomes immediately available. If a visa is issued, the alien can use it to gain lawful admission to the United States as an LPR. If, however, an unauthorized alien returns home to apply for a visa, the Department of State (DOS) consular officer who is considering the visa application may find that the alien is inadmissible to the United States for 3 or 10 years based on the alien's prior unlawful presence in the United States, and thereby ineligible for a visa (see " Advance Parole ").

A prospective immigrant who is found to be ineligible for a visa by DOS based on his or her prior unlawful presence may be eligible for a waiver. Under INA Section 212(a)(9)(B)(v), DHS has discretionary authority to grant an alien a waiver if the alien is the spouse or son or daughter of a U.S. citizen or LPR, and it is established that refusal of admission to the alien would result in extreme hardship to the citizen or LPR spouse or parent. Until recently, an alien had to wait until he or she received an ineligibility finding from DOS during the overseas immigrant visa process before applying for a waiver, if eligible.

In 2013, USCIS issued a new rule that made changes to the unlawful presence waiver application process for certain spouses and minor children of U.S. citizens by establishing a provisional unlawful presence waiver. Under the rule, a beneficiary of an approved immigrant visa petition can apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if the alien meets all the applicable requirements, including demonstrating that a U.S. citizen spouse or parent would experience extreme hardship if the alien were denied admission to the United States. A recipient of a provisional waiver can then depart the United States to attend an immigrant visa interview with a DOS consular officer abroad. If the consular officer determines that the applicant, given the approved waiver, is admissible to the United States and eligible for a visa, the officer may issue the immigrant visa, which the individual can present at a port-of-entry to gain lawful admission to the United States.

Expansion of Eligibility for Provisional Unlawful Presence Waivers

As noted, DHS has statutory discretionary authority to grant an unlawful presence waiver to an alien who is the spouse or son or daughter of a U.S. citizen or LPR. Under current regulations, however, eligibility for a provisional waiver is limited to spouses and minor children of U.S. citizens. As part of the President's executive action, the DHS Secretary directed USCIS to expand eligibility for provisional unlawful presence waivers to all statutorily eligible groups for whom an immigrant visa is immediately available. The additional classes to be covered would be adult children of U.S. citizens; and spouses, minor children, and adult children of LPRs.

Clarification of Extreme Hardship Standard

In order to receive an unlawful presence waiver under INA Section 212(a)(9)(B)(v), an applicant must demonstrate that refusing to admit him or her to the United States would result in extreme hardship to a citizen or LPR spouse or parent. The term extreme hardship is not defined in the INA. In the Expansion of the Provisional Waiver Program memorandum, the DHS Secretary directs USCIS to clarify the factors it considers in making a determination about extreme hardship and "to consider criteria by which a presumption of extreme hardship may be determined to exist."

Discussion

These provisions of the President's executive action would offer different types of immigration relief to different subgroups of the unauthorized population. The beneficiary groups reflect the general priority the U.S. immigration system gives to preserving the unity of the immediate families of U.S. citizens and LPRs. None of these provisions of the President's executive action would directly grant beneficiaries a lawful immigration status—only congressional action can confer immigration status.

The expansion of the provisional unlawful presence waiver program to specified relatives of U.S. citizens and LPRs—spouses and minor children of LPRs and adult children of U.S. citizens and LPRs—with approved immigrant visa petitions could help facilitate these individuals' acquisition of LPR status. Beneficiaries of approved immigrant petitions who are unable to adjust status in the United States would still need to return to their home countries in order to pursue LPR status. Before leaving the United States to apply for a visa abroad, however, an eligible individual could apply for and receive a provisional unlawful presence waiver. During the overseas visa process, if a consular officer determines that the individual is subject to a 3- or 10-year bar on admission—and that no other grounds of inadmissibility apply—the individual could use the waiver to obtain a visa and gain admission to the United States as an LPR.

The executive action on advance parole also would address the 3- and 10-year bars, but in a different way. It effectively would make the 3- and 10-year bars inapplicable in cases in which an individual leaves the United States after being granted advance parole and then seeks to return.

The expansion of the military parole-in-place program would enable eligible spouses, children, and parents of U.S. citizens and LPRs who seek to enlist in the U.S. Armed Forces to be granted parole. Although parole is not considered an immigration status, an individual with parole can adjust to LPR status in the United States provided that he or she meets the applicable requirements (see " Provisional Unlawful Presence Waivers ").

The expansion of eligibility for DACA and the establishment of a new deferred action process for the unauthorized parents of U.S. citizens and LPRs who meet specified requirements could enable individuals in the newly covered groups to remain in the United States and, if granted employment authorization, to work legally. During the period of deferred action, these individuals would have protection from removal. They would be in a period of stay authorized by DHS and would be considered to be lawfully present for admissibility purposes. As such, during the period of deferred action, they would not accrue unlawful presence for admissibility purposes (which is relevant for application of the 3- and 10-year bars). Individuals granted deferred action would not be provided with a pathway to a lawful immigration status, however, and DHS has the discretion to terminate the grant of deferred action at any time.

High-Skilled Workers

A key principle underlying U.S. immigration policy is facilitating the permanent and temporary entry of foreign nationals with needed skills. Admitting professional, managerial, and skilled foreign workers raises a series of policy tensions as the United States attempts to compete internationally for the most talented workers without negatively impacting wages and working conditions of native workers and students entering the U.S. labor market.

Permanent Employment-Based Immigration79

Immigrant admissions and adjustments for LPR status are subject to a complex set of numerical limits and preference categories that give priority for admission on the basis of family relationships, needed skills, and geographic diversity. The current employment-based LPR visa system consists of five numerically limited preference categories:

first preference : priority workers who are persons of extraordinary ability in the arts, the sciences, education, business, or athletics; outstanding professors and researchers; and certain multinational executives and managers; second preference : members of the professions holding advanced degrees or persons of exceptional ability; third preference : skilled workers with at least two years training, professionals with baccalaureate degrees, and unskilled workers in occupations in which U.S. workers are in short supply; fourth preference : special immigrants who largely consist of religious workers, certain former employees of the U.S. government, and undocumented juveniles who become wards of the court; and fifth preference : investors who invest at least $1 million (or less money in rural areas or areas of high unemployment) to create at least 10 new jobs.

Employers who seek to hire prospective immigrant workers petition USCIS. Employers who seek to hire prospective employment-based immigrants through the second and third preference categories also must petition the U.S. Department of Labor (DOL) on behalf of the alien (see " Labor Certification " below).

High-Skilled Temporary Worker Visas81

Temporary visas for professional, managerial, and skilled foreign workers have become an important gateway for high-skilled permanent immigration to the United States. The Administration contends that employers use temporary worker visas to retain workers as they wait for LPR visa numbers to become available. If workers' nonimmigrant visas expire before their permanent visas become available, such workers must leave the country.

Over the past two decades, the number of visas issued for temporary employment-based workers has more than doubled, from just over 400,000 in FY1994 to over 1 million in FY2013. Notably, policymakers and advocates have focused on two visa categories in particular: H-1B visas for professional specialty workers and L visas for intracompany transferees. These two nonimmigrant visas epitomize the tensions between the global competition for talent and possible adverse effects on U.S. workers.

Changes to Current Policy

On November 20, 2014, the DHS Secretary released a policy memorandum stating that USCIS would be producing new regulations and policies designed to "grow our economy and create jobs" by attracting and retaining highly skilled immigrants. The policy changes would affect employment-based LPR visas; optional practical training (OPT) for foreign students; the L visa category for intracompany transfers; and select foreign nationals who are inventors, researchers, and founders of start-up enterprises. In addition, the Secretary announced that he would be publishing a final rule to incentivize employers of current temporary workers to sponsor them for LPR status. Concurrently, DOL announced a review of the policies and regulations related to labor certification.

Preventing Visa Retrogression88

As discussed above, a complex set of numerical limits and preference categories dictates how many and which persons may become LPRs in a given year. DOS is responsible for allocating the visas based on family- and employment-based preference categories and uniform per-country limits. DOS must calculate when a visa number is available for a specific foreign national with an approved immigrant petition, allowing that foreign national to adjust to LPR status if they are in the United States or receive their LPR visa if they are outside the country. Several years ago, "accounting problems" between USCIS's processing of LPR adjustments of status in the United States and Consular Affairs' processing of LPR visas abroad became apparent. This difference unexpectedly lengthened the wait for a visa for some foreign nationals with approved LPR applications (i.e., visa retrogression).

In the High-Skilled Memorandum, the Secretary stated that USCIS should continue to work with DOS to make sure that all immigrant visas are allocated when there is demand for such visas, and improve the system for determining when visas become available. DOS reportedly has agreed to modify the visa bulletin to clarify when a person's visa number will become available.

Labor Certification

The INA bars the admission of prospective immigrants who seek to enter the United States to perform skilled or unskilled labor, unless the Secretary of Labor certifies to the Secretaries of State and Homeland Security that such foreign workers will not displace or adversely affect the working conditions of U.S. workers. All labor certification applications (LCAs) for aliens seeking LPR status are processed through DOL's Program Electronic Review Management (PERM) labor certification system. In FY2014, employers reportedly submitted over 70,000 PERM applications requesting foreign workers, and the majority of the job openings were for professional occupations in Information Technology and Science. Under the President's executive action, DOL would review the PERM program and relevant regulations, with the goal of making the program more responsive to changes in the national work force.

Changing Jobs

Currently, employees with pending employment-based LPR visa applications may change jobs without jeopardizing their application only if the new job or position is in a "same or similar" occupational classification. Reportedly, workers often will not accept promotions or change employers due to fear of invalidating their applications. Under the High-Skilled Memorandum, USCIS was directed to consider amending regulations to ensure that long-standing visa petitions are not invalidated in cases where the employee seeks to change jobs or employers. Specifically, the DHS Secretary directed USCIS to issue a policy memorandum that provides guidance on the definition of "same or similar" occupational classification.

National Interest Waiver

Generally, foreign nationals attempting to immigrate under the second and third employment-based preference categories must be sponsored by an employer, who must certify that the foreign national is not displacing U.S. workers. Under the INA, certain foreign nationals with advanced degrees or exceptional ability may apply for LPR status without an employer sponsor if it is in the national interest. This is known as the "national interest waiver." According to the Administration, the waiver is underutilized and limited guidance exists on its use. In the High Skilled Memorandum, the DHS Secretary directed USCIS to issue guidance or regulations clarifying the circumstances under which the national interest waiver can be used.

Start Up Visas

Some have criticized the fifth-preference employment-based (EB-5) visa category for not allowing its applicants, who generate business ideas and obtain investor backing to launch them, to petition for LPR status. In the 113 th Congress, House-passed H.R. 2131 and Senate-passed S. 744 would have, under certain circumstances, allowed foreign nationals who received investment money from qualified investors to apply for LPR status.

The DHS Secretary, through the High-Skilled Memorandum, directed USCIS to create a program using the "significant public benefit" parole authority to allow certain high-skilled foreign nationals to enter or remain in the United States. The program would grant parole on a case-by-case basis to investors, researchers, and founders of start-up enterprises who may not qualify for the public interest waiver or EB-5 status, but who have secured "substantial" financing from U.S. investors or who "otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of 'cutting edge' research."

According to the memorandum, the grant of parole would temporarily allow these foreign nationals to pursue research, new ideas, and businesses in the United States rather than abroad, and give them time to secure temporary or permanent immigration statuses. Regulations to implement this program must include income and resource requirements. In addition, those who receive parole under this program would, reportedly, be ineligible for federal public benefits and premium tax credits under the Affordable Care Act.

Optional Practical Training (OPT)

During or after completing their undergraduate or graduate studies, foreign students on F-1 visas are permitted to participate in employment known as Optional Practical Training (OPT). OPT is temporary employment that is directly related to an F-1 student's major area of study. Generally, an F-1 foreign student may work up to 12 months in OPT status. In 2008, DHS expanded the OPT work period to 29 months for F-1 students in STEM fields.

The High-Skilled Memorandum directed USCIS and ICE to develop regulations to expand the number of degree programs eligible for OPT, and to extend the time period and use of OPT for STEM students and graduates. The new policy would also require the OPT program to have stronger ties to degree-granting institutions to ensure that a student's OPT furthers his or her course of study in the United States. In addition, the new policy would have to be consistent with U.S. worker protections.

L Visas104

Current law permits intracompany transferees to enter the United States on a nonimmigrant L visa that is designed for executives, managers, or employees with specialized knowledge of a firm's products. The L visa permits multinational firms to transfer top-level personnel to their locations in the United States for up to seven years. The INA does not require firms wishing to bring L intracompany transfers into the United States to demonstrate that U.S. workers will not be adversely affected in order to obtain L visas.

The L visa category is considered essential to retaining and expanding international businesses in the United States. Some, however, have raised concerns that intracompany transferees on the L visa may displace U.S. workers who had been employed in those positions for these firms in the United States. Others contend that the L visa has become a substitute for the H-1B visa, noting that L visa employees are often comparable in skills and occupations to H-1B workers yet lack the latter's labor market protections. These concerns have often been raised with certain outsourcing and information technology firms that employ L visa workers as subcontractors within the United States. A related concern is that the unchecked use of L visas could foster the transfer of STEM and other high-skilled professional jobs overseas. After investigating the L visa, the DHS Inspector General offered this assessment: "That so many foreign workers seem to qualify as possessing specialized knowledge appears to have led to the displacement of American workers, and to what is sometimes called the 'body shop' problem."

In the High-Skilled Memorandum, the DHS Secretary directed USCIS to issue a policy clarifying the meaning of "specialized knowledge" for L visa qualification. Reportedly, the goal of the new policy guidance would be to yield more consistent adjudication outcomes.

Discussion

The Administration did not provide details about the proposed policy changes related to high-skilled workers, but rather directed agencies to develop policies and regulations in these areas. Until such details are clarified, the potential impact of the changes remains unclear.

Integration and Naturalization

Immigrant Integration

Immigrant integration refers to the process by which immigrants become socially, economically, culturally, and politically integrated into American society. The United States admits for permanent residence, and processes for citizenship, the largest proportion and absolute number of foreign nationals of any other major immigrant-receiving nation. As the foreign-born population in the United States increases—41.3 million persons or 13.1% of the total U.S. population in 2013—federally funded immigrant integration programs take on greater prominence.

Unlike other major immigrant-receiving nations, the United States has no national policy or dedicated executive branch office focused on coordinating immigrant integration efforts across federal agencies. Federal immigrant integration programs take direct and indirect forms. Direct forms include the Department of Education's English Language Acquisition Grants and Migrant Education Programs, and the DHS Office of Citizenship's Immigrant Integration and Citizenship Program. Indirect forms are more numerous and often provide assistance to mostly low-income individuals. States and localities also contend with immigrant integration, particularly in new immigrant destination states. Increasing numbers of states and localities grapple with issues of communication and English language learning as well as law enforcement, education, workforce development, adult literacy, and health access, among others.

Immigration advocates contend that the size and growth of the foreign-born population and the need for greater efficiency and integration among federal and state agencies warrants an executive branch office for immigrant integration. A number of task forces have been convened to address this issue. Immigration advocates contend, however, that such proposals must go farther by establishing a federal office to coordinate and facilitate immigrant integration nationally in a more comprehensive manner. The Senate's comprehensive immigration reform bill, S. 744 , included such broader provisions.

The President's executive action would establish an interagency "White House Task Force on New Americans" with two primary objectives: (1) identify, promote, and expand immigrant integration best practices within states and localities; and (2) help determine steps that federal agencies can take to improve their own immigrant integration efforts. Other functions outlined within the action include providing technical assistance and training; collecting and disseminating related data and information; soliciting recommendations from nonprofit organizations, government officials, and other stakeholders; and monitoring equitable access to integration programs. The task force was expected to provide the President with recommendations to further the civic, economic, and linguistic integration of new Americans within four months and an implementation status report within a year.

Encouraging Naturalization

Naturalization, the process that grants U.S. citizenship to LPRs, is often viewed as a milestone for immigrants and a measure of their socioeconomic integration and assimilation to the United States. Practically, naturalized immigrants gain important benefits, including the right to vote, security from deportation in most cases, access to certain public-sector jobs, and the ability to travel with a U.S. passport. U.S. citizens are also advantaged over LPRs for sponsoring relatives to immigrate to the United States.

Despite the clear benefits of U.S. citizenship status over LPR status, millions of LPRs who are eligible to naturalize do not do so. Part of the reason for this may stem from INA requirements for naturalization that include five years of continuous residence in the United States, possession of "good moral character" and English language competency, and the passing of a U.S. government and history examination as part of a naturalization interview.

Naturalization applicants must also pay a fee, which some observers argue hinders LPRs from acquiring citizenship. USCIS currently charges $680 to process naturalization petitions. The fee amount raises several issues for Congress, including whether it is sufficiently onerous that it discourages naturalization, and whether it accurately reflects USCIS's cost to process naturalization applications. Empirical studies suggest that the volume of naturalization petitions filed may be inversely related to the naturalization fee amount, although other factors also explain application volume increases apart from fee increases. Immigration advocates have proposed providing more payment options for naturalization fees and making information about fee waivers more widely known .

The President's executive action directed USCIS to accept credit cards as a payment option for the naturalization fee, in addition to money orders or checks (which are currently the only payment options). The action also directed USCIS to consider the feasibility of a partial fee waiver to the naturalization fee. While USCIS offers waivers for some of its immigration services fees, waivers for the $680 naturalization fee are currently available only to those whose income is less than or equal to 150% of the federal poverty level. Those with incomes above this level do not qualify for any waiver and must pay the full $680 fee.

Discussion

How the President's creation of the White House Task force on New Americans marks a significant departure from previous federal efforts that explicitly focused on immigrant integration is unclear. It originated from a presidential executive action and lacked funding from Congress. While some advances in immigrant integration may result from greater federal coordination, the actual integration of immigrants into American society—economically, politically, socially, and culturally—involves considerable time and effort across many policy areas. Some immigration observers, citing experiences of earlier generations of immigrants, argue that taxpayers should not be funding government initiatives to foster integration. Others view some integration programs, such as English language instruction, as valuable investments that yield positive long-term returns.

Promoting naturalization generally has wide support, and expanding payment options for the naturalization fee may provide greater convenience for potential naturalization petitioners. Empirical evidence also suggests that the propensity to naturalize is price sensitive, suggesting that naturalization fee waiver options may boost naturalization rates among those who otherwise would not apply. Any such waiver options, however, would require USCIS to make up the corresponding shortfall in fee revenue through other means, including, possibly, reducing services, increasing processing times, and increasing other processing fees.

Other Executive Action Initiatives

Modernizing the U.S. Immigrant Visa System

Many agree that the U.S. immigration system contains dysfunctions for those who petition for immigration services and benefits: it is complicated to understand, redundant, time-consuming, and costly and burdensome to applicants and businesses. Some argue that the system, which requires technological infrastructure beyond what its fee structure can support, has reached a level that thwarts effective administration.

Bureaucratic and legal complexity can be expected of an administrative, technical, and legal system that handles the range of immigrant circumstances found in the United States, as well as the corresponding range of goals and objectives of agencies charged with implementing and enforcing U.S. immigration law. Yet, unlike regularly proposed and attempted overhauls of the similarly complex tax system, no major attempts have been made to overhaul the U.S. immigration system to allow it to work more efficiently and expediently.

USCIS, the DHS agency responsible for processing and adjudicating immigration petitions, has for several years undertaken a "modernization" program intended to convert itself from an entirely paper-based agency to a mostly digital platform. A recent review by DHS's Office of the Inspector General suggested that the program's goals have not yet been met.

On November 21, the White House, as part of the President's executive action, directed the Secretaries of State and Homeland Security in consultation with other federal agencies and stakeholders to recommend ways to (1) improve and streamline the legal immigration system, emphasizing reforms that reduce government costs, improve services for applicants, reduce employer burdens, and reduce waste and fraud; (2) ensure that all the visa numbers are used; and (3) modernize the visa processing technology to reduce redundancy, improve applicants' experiences, and increase public oversight. The Secretaries are also to establish metrics that can quantify improvement in these three areas.

Such reforms, long desired, would become more critical for USCIS if it implements the President's executive action. Soliciting recommendations for improving the functioning of the immigration system may help alleviate some challenges faced by end users. As with other components of the President's initiative, it remains to be seen how much can be accomplished through administrative refinements and the deployment of existing resources without the benefit of additional funding.

More Consistent Enforcement of Federal Labor, Employment, and Immigration Laws

In 2012, an estimated 8.1 million unauthorized aliens, representing just over 5% of the U.S. workforce, were working or looking for work in the United States. Lacking proper work authorization, they are vulnerable to exploitation in a variety of ways and less likely to have sufficient resources to enforce their rights effectively.

Three sources of labor protections exist for foreign workers in the United States: (1) conditions imposed on employers hiring foreign workers through the labor certification-attestation portion of the petition to admit foreign workers; (2) federal labor laws regarding employer adherence to requirements for wages and working conditions; and (3) private causes of action that foreign workers may have under state and local laws. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers. Among other tasks, ICE is responsible for investigating immigration law violations related to knowingly hiring unauthorized aliens.

In April 2009, DHS issued new guidance on immigration-related worksite enforcement that "reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers." In December 2011, DHS and DOL signed a revised memorandum of understanding to coordinate worksite enforcement actions and make them consistent with each agency's mission. Questions have arisen as to how rigorous and effective DHS's worksite enforcement efforts are and have been in past years.

On November 21, 2014, as part of the President's executive action, DOL announced the creation of an inter-agency working group to "promote effective and consistent enforcement of federal labor, employment, and immigration laws, with the goal of protecting all workers regardless of legal status." The working group would include representatives from federal agencies responsible for immigration enforcement and worker protections, including the Departments of Labor, Homeland Security, and Justice, and the Equal Employment Opportunity Commission and National Labor Relations Board.

The working group would be broadly tasked with ensuring that (1) current immigration and employment policies do not dissuade workers from cooperating with law enforcement authorities in cases of employment violations; (2) federal enforcement authorities are not used by those who wish to undermine worker protections by enmeshing immigration authorities in labor disputes; and (3) federal labor, employment, and immigration laws are consistently applied.

As with most of the other elements of the President's executive action, this initiative would be implemented without a congressional appropriation or stated source of funding. Hence, it remains to be seen the extent to which the creation of an inter-agency task force and greater coordination and planning among and within agencies could improve wages and worksite conditions for workers vulnerable to exploitation because of their immigration status (or lack thereof).

Expanding Support for Crime Victims

U nonimmigrant status is reserved for victims of certain statutorily specified crimes that occurred within the United States. To qualify for U status, a foreign national must receive certification from a law enforcement agency that he or she is being or is likely to be helpful in the investigation and prosecution of the criminal activity.

T nonimmigrant status is reserved for foreign nationals in the United States who are victims of severe forms of trafficking. To receive it, foreign nationals, with some exceptions, must comply with reasonable requests for assistance from law enforcement. Law enforcement certification is optional for T status, unlike for U status, but it serves as important evidence for applicants.

As part of the President's executive action, the Department of Labor (DOL) announced that in early 2015 it would begin exercising its authority to provide law enforcement certification to trafficking victims applying for T status. In addition, DOL would simultaneously expand the types of crimes for which it certifies to include victims of extortion, forced labor, and foreign labor contracting fraud.

The DOL Wage and Hour Division enforces federal labor laws, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Workers Protection Act, and assists with human trafficking investigations involving violations of these laws. As a result, DOL may encounter trafficking victims. Some advocates note that DOL's enforcement of wage and hour laws could help reveal trafficking and crime victims, as those who engage in labor trafficking or other criminal activity in the workplace are also likely to violate wage and hour laws.

Conclusion

The President's Immigration Accountability Executive Action announced on November 20, 2014, includes provisions meant to alleviate uncertainty for potentially millions of unauthorized aliens through deferred action and the use of provisional waivers and parole. It is also intended to revise enforcement priorities and improve and coordinate strategic initiatives across a range of immigration policy areas, including border security, high skilled immigration, and naturalization. Whether this executive action can accomplish these objectives and prompt Congress to pass more permanent legislative solutions is unclear.

Accomplishing such goals in the face of a potentially resistant Congress may prove challenging. USCIS, the agency tasked with carrying out sizable portions of the executive action, would be relying upon an indeterminate amount of additional fee revenue from deferred action petitions to implement some of these objectives, while other agencies, lacking congressional appropriations, would be attempting to implement changes to current policies and procedures mostly through increased coordination and more innovative marshaling of existing resources.