President Obama's Executive Action: Amnesty vs. Deferred Action

In the wake of President Obama's announcement last night to extend deferred action initiatives to undocumented immigrants, it is important to understand that such action is not amnesty, nor does it grant legal status to undocumented immigrants as suggested by various media outlets.

The term "amnesty" means a pardon or forgiveness.  Past immigration amnesties were pardons, forgiving undocumented immigrants who were in the United States, providing them a pathway to become green card holders first, and eventually US Citizens.

Deferred action is not a pardon or forgiveness.  In fact, it does not provide a pathway to obtain permanent resident status (green card) or US Citizenship.  Simply put, in this context, it is the government's decision not to place certain undocumented immigrants in immigration court, (deportation or removal proceedings).  It is an act of prosecutorial discretion.  While undocumented immigrants who qualify for this prosecutorial discretion will be eligible to apply for work authorization, they will not be entitled to other government benefits as they would be if they were granted amnesty.

Accordingly, stating that these undocumented immigrants who will benefit from President Obama's actions will be given legal status and be pardoned for their immigration violations is inaccurate.   They will merely be protected for a set period of time from deportation, with no clear path to obtain permanent legal status in the United States.

Defining "Illegal Immigrants"

As the discussion about immigration reform and presidential action continues, it is important to accurately classify the immigrants in the United States, and the benefits for which they may already qualify.  This is especially important for the media, which is reporting on the proposed changes to immigration law and policy.  For instance, The Wall Street Journal published an article recently discussing possible changes to immigration policy (http://online.wsj.com/articles/obama-may-cut-deportations-1414626089), using the term "illegal immigrant" to define the class of immigrants with no lawful status in the United States. 

Unfortunately, "illegal immigrant" has become a common term for someone who does not have the appropriate authorization to be in the United States, such that it leads to errors in reporting.  Specifically, articles often refer to “illegal immigrants” who would obtain some benefit from President Obama’s expected executive action on immigration.   In doing so, reports often fail to make critical distinctions regarding illegal immigrants, who are more appropriately called undocumented or unauthorized. 

There are two types of undocumented immigrants in the United States.  The first class is those who entered the United States legally, going through procedures with Customs and Border Protection, but have stayed in the United States beyond the time granted to them when they entered (generally referred to as an “overstay”).  The second class includes those individuals who entered the United States unlawfully, crossing borders, without being inspected by a Customs and Border Protection officer. 

This distinction is important for several reasons, most importantly, the class of undocumented immigrants who enter the US lawfully can generally become green card holders in the United States, barring other immigration or criminal violations, so long as they have an immediate relative (U.S. citizen spouse, parent, or child) who can file an application on their behalf.  Simply put, their immigration violation of overstaying is forgiven and in many cases these undocumented immigrants can immediately apply for a green card while in the United States.

For the class of unauthorized immigrants who crossed the border unlawfully, they cannot obtain legal status by marriage to a US citizen, or by a petition filed by a US parent or child, unless they return to their home country.  Previously, the regulations required that this class of undocumented immigrants wait for a significant time outside the US before returning, as they had to request forgiveness for their previous immigration violations (entering the US unlawfully and remaining here).

However, the Department of Homeland Security established regulations in 2012, which went into effect in the beginning of 2013 that allow undocumented immigrants who entered the US unlawfully, and marry a US citizen or have a US citizen parent to submit an application, an advanced waiver, so that they do not have to spend significant time waiting in their home country. This waiver is available to undocumented immigrants whose only immigration violation is remaining in the United States without lawful status, and who are married to US citizens or have US citizen parents.

Given the complexity of immigration law, and the debates that ensue when discussing the need for comprehensive reform or potential executive action, it is critical that the public understand some basics so we can move forward in finding a workable solution that benefits the United States.