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Executive Action on Immigration Reform: The reach and scope of what the President can do unilaterally

Since the midterm elections last week, you cannot open a newspaper, log on to the internet or hear a report on T.V. without a discussion on Executive Action on immigration. The buzz words that were "Comprehensive Immigration Reform" have morphed into "Executive Action."

What is Executive Action?

Executive action occurs when the President announces an informal proposal or a policy initiative that he wants to put forward. The term executive action is vague and can be used to describe almost anything the president calls on Congress or his administration to do. Most executive actions carry no legal weight and are temporary in nature. Those that do actually set policy can be invalidated by the courts if an aggrieved party brings a law suit to stop the policy or can be undone by Congress.

The terms executive action does not mean "executive order." Executive orders are legally binding and published in the Federal Register. However, an executive order can also be reversed by the courts and Congress.

Executive Action or Executive Order are only temporary:

The recent DHS policy with respect to young people who entered as children known as Deferred Action for Childhood Arrivals, DACA, was the result of an executive action, not an executive order. If the President were to opt for an executive order with respect to his expected announcement on immigration reform, such an order cannot lead to a green card, much less citizenship. In addition, such an order legally cannot raise the amount of visas that are available to those who follow the law in entering the United States legally. So what does this mean? Any fix that the President pursues will by temporary at best. For instance, DACA only gives a work permit for 2 years with only a one-time renewal for a maximum of 4 years.

The misunderstood "Reagan Amnesty:"

The "Reagan Amnesty" is often misunderstood as an executive action/order on immigration reform that set a precedent for President Obama's proposed executive action on the current immigration problem. This would be a mistake because the "amnesty" was the result of President Reagan signing the 1986 Immigration Reform and Control Act, IRCA, which was a bill that went through the traditional legislative process of being passed in the House and the Senate before being signed into law. It was not the result of an executive action or an executive order. IRCA was the result of bill introduction, floor debate, committee research and discussion and public input. Far from unilateral action, IRCA was the result of Congress working with the President to put forward an effort to solve the immigration crisis. It has often been referred to as a failure, which is sad considering the success it achieved in government cooperation to work together to address a public concern.

Preparing yourself for the opportunity of immigration reform:

Stay informed:

What can you do to make sure you do not miss out on the opportunities that may result from immigration reform? You must stay informed. Over the many years that we have been practicing law we have seen the "amnesty," LULAC, 245(i), NACARA, TPS and asylum claims that were later vacated by the Courts. All these applications have one thing in common: the people who obtained work permits or residence through these applications were prepared for the opportunity when the opportunity presented itself. These applications no longer exist. For instance, if you filed a labor certification on May 1, 2001, you missed out on 245(i). You cannot let that happen with all the warnings and updates that are now available via the media.

However, how can you trust what you read on social media or hear on T.V. or read in the newspapers? On what sources are the stories about immigration reform based? Unfortunately, you are vulnerable to misinformation and confusion from what you hear from the media. When you are our client, you will be assured that any updates you receive from our office will be accurate, reliable and timely. Why? Because we pay several thousand dollars a month in subscriptions from various legal resources that keep us informed all day long about the latest changes in immigration law. In addition, we work on several committees with Immigration Judges and government officials that give us access to information that never reaches the public. When you are our client we share that information with you.

Obtain your immigration history:

We fingerprint all of our clients. Why? Because in anticipation of a future application, we want to answer immigration concerns about our clients prior contact that resulted in fingerprints and if there are no prints we want immigration to know that as well. In addition, if there is a fingerprint "hit," we can obtain the file that immigration has on our client so that we know what immigration knows about our client. This is crucial for a future application because if there are inconsistencies between what is contained in immigration's file and a future application, we want to have an explanation for the inconsistency.

Get your documents in order:

Finally, we give our clients a list of documents that they will need for a future application and open a file for them. This way, if there is a new law or policy on immigration reform, are clients are prepared instead of scrambling to get documents together.

Insurance for reform:

I like to describe our effort as insurance that our clients will not miss out on any changes in immigration law that will benefit them in the future. We take the worry away from our clients about being prepared and staying informed. I have been an immigration lawyer for a long time. One thing I know is that there is no such thing as good luck, there is only being prepared for the opportunity when the opportunity presents itself. That is known as making your own luck.

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