Published:  December 9, 2014

Last month, President Obama announced his plan to implement an Executive Order aimed at benefiting millions of mostly undocumented immigrants living in the U.S.  To say the announcement caused an uproar would be a bit of an understatement.  In the weeks that have followed, 24 states have filed lawsuits seeking to block implementation of this plan, alleging the President overstepped the executive authority provided him under the U.S. Constitution, and is instead the type of initiative more properly within the province of our nation’s legislature.

What will become of the challenges to this Executive Order? Will the President’s plan ever get implemented?  If so, when?  Who are the prime candidates to apply for immigration benefits under the plan?  Which undocumented individuals should not bother?  What are the risks in applying?

Before we get to these questions, let’s first review the basics of this Executive Order:

Under the new Obama program, a now undocumented individual who:  A) arrived in the U.S. on or before January 1, 2010, B) resided in the U.S. continuously through November 20, 2014, C) paid taxes on income earned, D) has not been convicted of any significant criminal offense AND E) is the parent of a U.S. citizen or lawful permanent resident will qualify for Deferred Action status and a 3 year Employment Authorization Document (“EAD”).  Individuals facing removal proceedings, or an order of removal, will be eligible to apply under this new program, put a halt to removal proceedings, and remain in the U.S.

Additionally, the latest Obama Executive Order expands the pool of eligible applicants under the 2012 Executive Order allowing for Deferred Action for Childhood Arrivals (“DACA”).  This is the initiative benefiting individuals arriving in the U.S. while under the age of 16, and allowing for Deferred Action status and issuance of an EAD for individuals who have graduated, or enrolled are in high school (or certain vocational programs, or have obtained a GED) and have, at worst, only minor criminal records.  Under the new Obama Executive Order, the date by which applicants must have arrived here (and prior to reaching 16) will be January 1, 2010.  Further, applicants will be required to document continuous residence from that date and up to the present.  Lastly, the previous age limit of 31 has been eliminated, and applicants who are older than 31 years will be eligible to apply.

As far as the part of the Executive Order impacting individuals seeking permanent resident by way of a job offer and already in place mechanisms, eligible applicants will be able to proceed to the final stage of resident processing – adjustment of status – prior to priority date availability, and far sooner than allowed for under previous law.  With this change, the applicant will be able to obtain a general Employment Authorization Document and be allowed the greater freedoms to change jobs while processing is under way.

And Now, Some Answers/Guesses to the Big Questions:

What will become of the many legal and political challenges to this Executive Order? Will the President’s plan ever get implemented?  If so, when?

In all likelihood, this Executive Order will survive the legal and political firebombs being thrown at it. The courts will likely, in the end, conclude, as have multitudes of legal experts that it is within the President’s executive authority to implement this initiative. As far as political challenges are concerned, the politicians will play to the cameras as they deem appropriate, but in the end, this program will likely get implemented.  If Congress, by some miracle or surprise, comes to an agreement regarding a legislative path to legalization, then the executive order becomes unnecessary.  Details regarding procedures for the implementation of the Obama executive program will likely be released sometime before the end of January, 2015.

Who are the prime candidates to apply for immigration benefits under the plan?  Which undocumented individuals should not bother? 

If an undocumented individual has a driver’s license, social security number and secure employment, it seems there may not be much benefit or need to obtaining Deferred Action status and a 3 year Employment Authorization Document.  On the other hand, individuals in need of a social security number and/or new employment opportunities, are prime candidates for this status, as are individuals who are fighting removal proceedings.

The catch all category of prospective applicants is the pool of individuals looking to travel back to their home country after living in the U.S. for so long.  Depending on the applicant’s tolerance of risk, this may be another reason to apply, since it seems Advance Parole documents, allowing for international travel, may be available for approved applicants having emergency or humanitarian bases for their international trip.

Will I risk being placed in removal proceedings by applying for immigration benefits under this program? 

Unless you have multiple and/or serious criminal convictions, it is highly unlikely an applicant will ever face the possibility of removal because he or she applied under this program.  Even after a new President takes the helm in January 2017, it’s hard for me to imagine a set of circumstances where approved applicants under this program will essentially be stabbed in the back and forced to defend removal proceedings as a result of coming forward out of the shadows in an effort to legalize their status.


PUBLISHED December 9, 2014– “IMMIGRATION LAW FORUM” Copyright © 2014, By Law Offices of Richard Hanus, Chicago, Illinois