Janet Napolitano, Secretary of Homeland Security, issued a memorandum on June 15, 2012 that is likely to result in the issuance of thousands of work “visas” to certain categories undocumented persons.
In a nutshell, the executive branch has decided not to fully enforce federal immigration laws against individuals who:
- Came to the United States under the age of sixteen;
- Have continuously resided in the United States for at least five years preceding the date of June 15, 2012 and are present in the United States on June 15, 2012;
- Are currently in school, has graduated from high school, has obtained a GED, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offense, or otherwise pose a threat to national security or public safety; and
- Are not above the age of thirty.
The specific application is to be published in the coming weeks, but early indications are that the above-described individuals will be issued permission to be in the United States for the next two years and may also apply for permission to work. This memo can be found at www.dhs.gov and it describes other categories of individuals who may also be eligible. Napolitano is careful to point out that this process called “deferred action” does not confer any permanent immigration rights to the individual. In other words, only Congress may pass a law regarding immigration status, but the executive branch may choose how to enforce or not to enforce the law.
Applicants and their employers must understand that since this is not a law, it could be subject to change in the near future, especially if we have a new president. People who were brought into the United States without permission as children are loosely referred to as “dreamers” after the proposed legislation called the “Dream Act” which failed to pass in recent years. Dreamers and their employers should realize though, that it is also possible that the policy may expand and improve from the perspective of a dreamer or it may become more restrictive. Mit Romney has not been too specific about whether he would terminate the deferred action program if he were elected, but he has indicated that he would seek to push comprehensive immigration reform through Congress. Senator Marco Rubio (R-Fla), has been an outspoken opponent of the Obama Administration’s deferred action policy calling it a short-term answer to a long-term problem. Rubio, the son of Cuban immigrants, is pushing for a legislative solution that will strike a balance between helping dreamers and not encouraging future illegal immigration.
Even though there seems to be an air of compromise emerging from Washington regarding dreamers, if employers want to hire and train dreamers, one would be wise to pay attention to politics in such a fluid situation. Nonetheless, the new policy will be a welcome relief for thousands of dreamers who want to work legally but choose to risk using false social security numbers to work (which can cause problems for the real owner of the number or, in some cases, improve a credit rating), or are paid under the table, or do not work at all.
The “Dream Act” is constantly being updated, for the most upto date information see Department of Homeland Security and search for the term “deferred action”.
Matt Poirier, Esq.