President Barack Obama’s executive orders protecting some illegal immigrants from deportation do exactly what the president said they wouldn’t—open a path to citizenship, according to Republican Congressman Bob Goodlatte.
But the 5 million people eligible for Obama’s programs shouldn’t celebrate just yet. The path we’re talking about is narrow and steep.
There are some 11 million illegal immigrants in the United States and about 45 percent of them came to the country legally, but overstayed their visa.
Those who overstayed their visa can still get on a path to citizenship if they marry an American, or have an adult child who’s a U.S. citizen, or are themselves children of a citizen and are under age 21.
Those who crossed the border illegally have no such option. If they marry Americans and want to become citizens, they have to go abroad and ask for a special waiver. They need to prove their absence brings “extreme hardship” to their family in the United States.
But what happens with Obama’s program in the mix?
Parole to the Rescue
Under Obama’s program, called Deferred Action for Childhood Arrivals (DACA) many people brought into the country as children by their illegal immigrant parents can get protection from deportation and a work permit. Over 600,000 enrolled into the program by September.
If they need to travel abroad, they can apply for the so-called advance parole. When they return to the United States with this document the Department of Homeland Security (DHS) will consider it a lawful entry. Then, if they have a close relative who is a U.S. citizen, they can apply for permanent residency and eventually the coveted citizenship.
That’s exactly what Rep. Bob Goodlatte protested as a “sneaky attempt” to offer a pathway to citizenship for DACA recipients.
DACA has been around since 2012, but Obama expanded it to some 330,000 more illegal immigrants with a new executive order in November. DHS is just about to start accepting applications on February 18. And the Republicans in Congress are trying to cut funding to the program.
Under the expanded program people “will now be able to file applications for advance parole at the same time they file their DACA application,” Goodlatte stated, referring to a teleconference with DHS staff last week.
Moreover, Obama’s November order includes an additional 4 million illegal immigrants whose children are U.S. citizens. They should start to enroll in May and, in addition to protection from deportation, they would also be eligible for advance parole, according to Robert Deasy, deputy director for programs with the American Immigration Lawyers Association (AILA).
Update: On Feb. 16 U.S. District Court Judge Andrew Hanen granted a preliminary injunction blocking Obama’s November executive order from implementation. Current DACA recipients are not affected.
The catch is people can only apply for advance parole if going abroad for humanitarian, employment, or educational purposes. That can mean, for example, a dying grandmother or a scientific expedition in a foreign country, Deasy explained.
In the first two years of DACA, only 4,000 people actually received advance parole. Over 500 were denied and about 1,800 applications were pending at that time, according to Goodlate.
And even after re-entering the United States with the advance parole, people have no guarantee their applications for “adjusting status” to permanent residency will be granted.
In the DHS regulations, “there is no official recognition of this path yet,” according to Law Professor Lenni Benson from the New York Law School.
However, DHS now “effectively has a policy that allows adjustment” to permanent residency after re-entry with DACA and advance parole, according to immigration lawyer Amien Kacou’s post on nolo.com.
But if people start to abuse the system, DHS can change its approach, Kacou warned.
“The difficulty and the risk will only increase as DHS begins to suspect that more and more DACA recipients are traveling solely for the purpose of bypassing the law,” Kacou stated.
It all depends on whether the reason why a DACA recipient travels abroad is legitimate. “You’ve got to paper it up. You’ve got to document your claim,” said Deasy.