The President has spoken, eloquently, of the need to act to address our immigration problems in the face of the two years of inaction by the House of Representatives. And act he has, to the benefit of millions. It is surely a glass half full for many, but also half empty for many others.
Before engaging in begrudgery about the opportunities missed and the changes still to be sought, it is important to identify the benefits that are about to become available. And unlike DACA, where the numbers of Irish families benefitted was small, many more will be helped by these new rules.
The main benefit is the extension of deferred action to parents of U.S. citizen children under a program known as DAP (deferred action for parents). Under standard immigration rules, this includes adoptive parents and unmarried fathers under most circumstances. The other key qualifications are five years of continuous presence and absence of specified criminal convictions. The most surprising of these exclusions may be that a DUI conviction, regardless of the seriousness of the underlying conduct, is disqualifying. (This is true of DACA as well.)
But what about travel home? This is one of the biggest hopes for the Irish undocumented. And the full answer is still to come. It will require “advance parole” for sure. That is official permission from the Department of Homeland Security (DHS) in advance that allows re-entry after a trip abroad for those lacking a visa or green card to enter the country. For DACA, advance parole is available under limited circumstances and the permission has been granted unevenly around the country.
Advance parole is provided routinely to those applying for green cards in the U.S. so that they can travel while the application is pending. And recent rulings have made it possible to travel on advance parole in those circumstances without triggering the 10-year bar on departure, which was previously a serious limit on travel for many green card applicants. The Obama orders include an instruction to make this rule broadly applicable to all advance parole travel, a welcome clarification.
However, there are limited circumstances for advance parole under DACA, primarily “urgent humanitarian purposes, which include medical assistance, to attend a family member’s funeral, visiting a sick relative, or some other urgent family-related matter.” Why is only crisis and sadness sufficient for travel, rather than joy and celebration, and everything in between? If we are willing to have people live and work here in accordance with law, why the constraints on going abroad and returning? This seems to be a triumph of tradition over common sense.
So, we need new rules allowing routine travel permission similar to that enjoyed by green card applicants. And this will be important for another reason. There are many in the Irish community who are eligible for legal nonimmigrant visas as professionals (H-1B) and business owners (E-1 and E-2). Right now, they can get approved for the status but not obtain it because it requires a trip to Canada or Dublin for the visa. That trip would trigger the 10-year bar without advance parole. But with advance parole, the full legal nonimmigrant status can be secured and the path to a green card opened up.
The big gaps left by the Obama orders are for those parents here shorter than five years and those individuals without U.S. citizen children. It is hard to see those gaps being filled by the President after he decided on the lines he drew at this time. But it is not impossible to imagine that after the current partisan battle subsides and the benefits of the DAP program begin to be seen, some expansion might be implemented. The current arrangement has left a big group that is both not given work status and is not a priority for deportation. Preserving that purgatory seems to make little sense. However, it is not likely that the 114th Congress will improve the scope of these benefits.
On the other hand legislation on some aspects of immigration—mostly legal immigration rules and prevention of illegal entries and overstays—may have been made more likely by the Obama actions. If some pieces can move without others, the system might just become “unstuck.” This could be good news for the long run. If Republicans find that immigration is not a third-rail issue, more compromise might lie down the tracks.
Meanwhile, the President pushed away a number of proposals to improve legal immigration, most specifically the idea of counting only principal immigrants against the worldwide quotas. This would double the speed with which the queues move for those waiting for green cards. The announced changes in green card rules are likely to be very modest in their effect. But there is a commitment to study the “principals-only” idea further, so there might be some good news on this front in 2015.
One idea for limited legislation is the Irish E-3 visa. It is still a good idea for both current and future immigration needs of the Irish community. And those who do not like its limitation to one nationality can push to expand it to other countries. In the Senate CIR bill, it was paired with a similar program for sub-Saharan Africa. Almost 80% of the undocumented community is from Mexico and Central America. They have never been shy about pushing for what helped their communities. Good for them. No reason the Irish cannot have their priorities, too.