February 13, 2018

Four Pillars: The Trump Administration Immigration Plan

Key Takeaways

  • On March 5, work authorizations may begin to expire for the 690,000 recipients of Deferred Action for Childhood Arrivals, or DACA.
  • The Trump administration last month released a framework for legislation to provide legal status and a pathway to citizenship for an estimated 1.8 million people eligible for DACA.
  • The framework would also strengthen border security, eliminate the diversity visa program, and limit family-sponsored immigration to spouses and minor children of citizens and green card holders.

When the Trump administration announced a plan in September 2017 to wind down the temporary Deferred Action for Childhood Arrivals program, the president and senators of both parties expressed interest in pursuing a legislative fix. DACA was established by the Obama administration in 2012 without authorizing legislation. It granted a two-year work authorization and relief from removal to people without legal status who had entered the U.S. before they were 16 years old.

Trump Administration Immigration Framework Addresses Four Pillars

DACA Wrap-Up

Late last month, the administration released a framework for legislation to normalize the immigration status of people who are unlawfully in the U.S. and who had entered the country as children. The administration’s framework would strengthen border security, provide legal status for DACA recipients and people eligible for DACA who did not apply, eliminate the diversity visa program, and limit family-sponsored immigration to spouses and minor children of citizens and green card holders. Several Republican Senators, including Senators Chuck Grassley, Tom Cotton, James Lankford, John Cornyn, Thom Tillis, David Perdue, and Joni Ernst have incorporated the administration’s framework into an amendment to the immigration bill that they expect to introduce this week.

Overview of DACA

DACA was established by the Obama administration in a June 2012 memorandum issued by Secretary of Homeland Security Janet Napolitano. The memorandum called DACA a form of “prosecutorial discretion” and based the authority to create the program on the power of the administration to set immigration enforcement priorities. At the time, President Obama described DACA as a “temporary stopgap measure.”

DACA relief was available to people 16 to 30 years old who had entered the U.S. before they were 16 and had no lawful status on June 15, 2012, the date of the memo. Applicants must have continuously resided in the U.S. for at least the five previous years, that is, since June 15, 2007. Only those who were currently in school, who had graduated from high school or received a G.E.D., or who had served in the armed services were eligible. They could not have been convicted of a felony, a “significant misdemeanor,” or three or more misdemeanors, and could not otherwise pose a “threat to national security or public safety.” Those who had entered the U.S. illegally and those who entered legally but overstayed their visas or violated the terms of their admission were eligible for DACA.

Potential recipients had to file an application with DHS to receive DACA immigration relief and work authorization. Approved recipients got relief from potential deportation for two years and a permit to work legally in the U.S. for that period. They were required to reapply for work authorization and deferred action every two years.

DACA Wind Down

On September 5, 2017, DHS announced that it would no longer accept new applications for DACA relief, effective immediately. DACA enrollees would be able to work until their two-year work authorizations expire. People whose work authorizations were set to expire before March 5, 2018 – six months from the announcement – were allowed apply for a two-year renewal until October 5, 2017.

The announcement of the DACA rescission came after Attorney General Jeff Sessions recommended that DACA be ended. He explained that DACA was created “without proper statutory authority and with no established end-date” and described it as an “unconstitutional exercise of authority by the Executive Branch.” The announcement also followed a June 2017 letter from state attorneys general who had successfully challenged another Obama administration executive action on immigration, the Deferred Action for Parents of Americans and Lawful Permanent Residents, which would have allowed parents of U.S. citizens or lawful permanent residents to remain in the country and receive a three-year work authorization. In the letter, the state attorneys general said that they would challenge DACA if the program was not rescinded by September 5.

In January 2018, a judge in the Northern District of California ordered DHS to reinstate DACA while litigation over the rescission was pending. The judge told DHS to maintain the program nationwide “on the same terms and conditions” as were in effect before September 5, 2017, including allowing DACA enrollees to renew. The order has been appealed by the administration.

Administration Framework

The administration’s framework suggests a path forward on the DACA issue and includes four key pillars: strengthening border security; providing legal status and a path to citizenship for DACA recipients and certain other immigrants; eliminating the diversity visa lottery program; and limiting family-sponsored immigration to spouses and minor children of citizens and green card holders.

          Pillar One: Border Security

The framework would strengthen border security by creating a $25 billion trust fund for “the border wall system, ports of entry/exit, and northern border improvements.” It streamlines immigration adjudication and the removal of criminals, gang members, and illegal border-crossers.

Improving border security to stem the flow of illegal entrants has long been a bipartisan priority. A majority of Senate Democrats – including Senators Barack Obama, Hillary Clinton, and Chuck Schumer – voted for the Secure Fence Act of 2006. This law authorized construction of physical and technological barriers on the southern border. At a December 2007 debate in the Democratic presidential primary, then-Senator Obama pledged as president to “make sure that the federal government does what it’s supposed to do, which is to do a better job of closing our borders and preventing hundreds of thousands of people to pour in.”

          Pillar Two: DACA

The administration’s framework would provide legal status for DACA recipients. It would also legalize other people who had been eligible for DACA but who have not applied for it. The framework would grant recipients a 10- to 12-year path to citizenship, with work and education requirements.

The number of people eligible for any immigration relief program depends on the details of the program, such as the cut-off dates for eligibility. Because the government does not know the identities of everyone present in the U.S. without lawful status, it is difficult to accurately predict the number of people who would be eligible for any grant of legal status, whether DACA or another program. As of September 2017, there were 689,800 active DACA recipients. The administration estimates that 1.8 million people, including DACA recipients and those who were eligible for DACA but did not apply, would be covered by its proposed program.

          Pillar Three: Diversity Lottery

The framework would eliminate the diversity visa program and reallocate visas currently apportioned to the program. The program provides green cards for up to 50,000 immigrants each year from countries with low rates of emigration to the U.S.

Nationals of countries from which 50,000 or fewer immigrants came to the U.S. over the previous five years combined are eligible for diversity visas. Immigrants from any one country may not receive more than 7 percent of diversity visas issued annually. Prospective diversity immigrants first register for a “lottery” with the State Department, which randomly selects who may apply for a visa. Successful applicants get green cards and can apply for citizenship after five years.

Both Republicans and Democrats have supported legislation to get rid of the diversity visa program in the past. In 2013, the so-called “Gang of Eight” immigration bill that passed the Senate by a 68-32 vote with broad Democratic support, would have ended the program. The bill did not pass in the House.

          Pillar Four: Chain Migration

The administration framework would limit family sponsorship green cards to spouses and minor children of U.S. citizens and green card holders. Most immigrants to the U.S. get their green cards because they have a family member who is a U.S. citizen or holds a green card. An unlimited number of green cards may be issued to the minor children, parents, and spouses of adult citizens. In 2016, the U.S. issued about 570,000 green cards to these immediate relatives of U.S. citizens. Of this total, around 305,000 were issued to spouses of U.S. citizens, 90,000 were issued to children of U.S. citizens, and 175,000 were issued to parents of adult U.S. citizens.

A limited number of green cards are available for unmarried adult children of U.S. citizens, spouses and minor children of green card holders, unmarried adult children of green card holders, married adult children of U.S. citizens, and siblings of U.S. citizens. Green cards for each type of family member are further limited and are subject to per-country caps. In 2016, the U.S. issued around 238,000 visas to these other relatives.

The number of applicants for the family-sponsored categories consistently exceeds the limits. There are about 4 million people on the family-sponsored visa waitlist. Under the administration’s framework, people already on the waitlist would continue to have their applications processed. 

Issue Tag: Judiciary